Indian Perspective on the Basel convention and its effects: Hazardous wastes belong to the category of special wastes having constituents of chemicals, metals and other compounds which can cause environmental pollution. pollution. In order order to regulate regulate and ensure ensure environmentally environmentally sound sound management management of the hazardous wastes, the Govt. of India notified the Hazardous Wastes (Management & Handling) Rules, 1989 under the Environment (Protection) Act, 1986. The Government of India has ratified the Basel Convention on the control of transboundary movement of hazardous wastes and their disposal (under the aegis of UNEP). Provisions and certain decisions of the Basel Convention will have to be harmonised within the domestic legislation according to the India’s
commitment to the Convention. These will have implications on the Indian industry and environment. After ratification of this convention, India will be unable to source hazardous wastes for treatment from Organization for Economic Co-operation and Development (OECD) countries because of the ban. The convention requires specialized treatment facilities in order to ensure an environmentally sound recovery or disposal. Therefore, transboundary shipment of hazardous waste is regulated by the convention. Import of hazardous waste is legally prohibited in India but the import may be allowed for the purpose of recycling, recovery or reuse. However, the convention is unable to prevent inflow of hazardous wastes into India from countries that have not ratified the agreement (USA and other northern developed countries). countries) . Industrialized countries want to dump their wastes in developing countries such as India due to strict regulations of disposal and management of such wastes in their own country. Restrictions imposed by the convention aim at encouraging signatory countries to reduce generation and disposal in safe manner.
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National Hazardous Waste Management Strategy The hazardous waste management strategy incorporates incorporates the essence of National Environmental Policy 2006, relevant multilateral environmental agreements like Basel Convention and the national regulations. It deals with effective management of hazardous wastes to avoid environmental pollution call for appropriate strategy for regulatory bodies, generators, recyclers and operators. The strategy also facilitates implementation of action plan as per National Environment Policy 2006 and obligations under the Basel Convention. Application of ‘polluter pays principle’, inventory of hazardous waste generation, cement kilns for incineration, common treatment, storage and disposal facilities, interstate transportation, safe disposal, illegal dump sites, remediation and strengthening of the infrastructure of regulatory bodies are some core areas of immediate attention in this field. Further India has enacted the following acts in accordance of the Basel convention.
Hazardous Waste (Management and Handling) Amended Rules, 2003. The Ministry of Environment and Forests has promulgated Hazardous Wastes (Management and Handling) Rules, 1989 and amended the same in 2000 and 2003 for effective management and handling of hazardous wastes. These rules define hazardous waste as ‘any waste which by reason of any of its physical,
chemical, reactive, toxic, flammable, explosive or corrosive characteristics causes danger, or is likely to cause danger, to health or environment, whether alone or when on contact with other wastes or substances. There are 36 types of industrial processes listed in schedule-I of these rules. Wastes containing Hg, As, waste Asbestos (dust or fibers), waste oil etc., are in the list of banned wastes
for import and export. The 2003 amendment rules have excluded
biomedical wastes, MSW MSW wastes and wastes related with lead batteries from from the list of hazardous wastes as these are covered under special rules. These rules have 2|Page
also listed the hazardous wastes mainly mercury, its compounds, clinical and related wastes which are prohibited for import and export.
The Hazardous Wastes (Management, Handling and Transboundary Movement) Rules, 2008 The rules establish responsibility for safe and environmentally sound handling of wastes by any ‘occupier’ of hazardous waste. ‘Recycling’ is defined as ‘reclamation or reprocessing of hazardous waste in an environmentally sound
manner for the original purpose or other purposes’. The occupier and operator of a facility shall be responsible for proper collection, reception, treatment, storage and disposal of hazardous wastes. It is also the duty of occupier and operator to prevent accidents and limit their consequences, provide information, training and equipment to persons working on-site to ensure safety. A person engaged in all types of handling of such wastes must obtain an authorization from concerned SPCB. The occupier or handler may store hazardous wastes for a period up to 90 days. He has to keep the records of sale, transfer, storage, recycling and reprocessing of such wastes and shall make it available for inspection. Any occupier may only sell or transfer it to a recycler having a valid registration from the CPCB. In order to use hazardous wastes for energy generation, the occupier has to obtain approval from CPCB. Any persons who wish to operate a ‘facility’, for the management of hazardous wastes must have treatment, storage and disposal facility (TSDF) in compliance with the technical guidelines issued by the CPCB. The state government, occupier or any association shall identify possible sites for disposal facility but only after preliminary impact assessment studies. In case of i nterstate transport of hazardous wastes for final disposal, ‘No Objection Certificat e’ is must condition from SPCB’s of both states. The occupier, transporter and operator of a facility shall be liable for damages caused to the environment resulting due to improper handling and disposal of hazardous waste. In addition to these rules, the government has moved to enact into 3|Page
legislation, additional incentives for industries to comply with environmental provisions. In this vein, the Public Liability Insurance Act, 1991 was adopted to require industries dealing with hazards and to ensure against accidents or damages caused by pollutants. The National Environmental Tribunal Act, 1995 provides provisions for expeditious remedies to parties injured by environmental crimes. Legislation on a Community Right to Know, 1996 has also been adopted to provide more access to information regarding potential hazards from industrial operations.
Biomedical Waste (Management and Handling) Rules, 1998 amended 2011. Management of biomedical wastes (BMW) is governed by the Biomedical Waste (Management and Handling) Rules, 1998 and are published under EPA, 1986. Prior to 1998, the management of healthcare waste in India was the responsibility of municipal or governmental authorities. Hospitals generate various kinds of wastes from wards, operation theatres and outpatient
areas.
These
wastes
include bandages, cotton, soiled linen, body parts, sharps (needle, syringes etc), medicines (discarded or expired), laboratory wastes etc. Other wastes generated in healthcare settings include radioactive wastes, mercury containing instruments and polyvinyl chloride (PVC) plastics. These are among the most environmentally sensitive by-products of healthcare. Tuberculosis, pneumonia, diarrhoeal diseases, tetanus, whooping cough etc., are other common diseases spread due to improper waste management. The government hospitals and major private hospitals have their own arrangement for treatment of biomedical waste. The management of health care waste in India is ‘bleak’. It is common scene in India that biomedical waste generated from health care facilities in most of the places are collected without segregation and are disposed in municipal bins 4|Page
located either inside or outside the facility premises. These rules apply to all persons who generate, collect, receive, store, transport, treat, dispose, or handle biomedical waste in any form.
The Batteries (Management and Handling) Rules, 2001 Amendment 2010 The Batteries (Management and Handling) Rules, 2001 amended in 2010 apply to every manufacturer, importer, re-conditioner, assembler, dealer, recycler, auctioneer, consumer and bulk consumer involved in manufacture, processing, sale, purchase and use of batteries. They also ensure that used batteries are collected back for the purpose of recycle or proper disposal. These rules also required to file a half-yearly return of their sales and buy-back to the concerned state board, set up collection centers and ensure that used batteries are sent only to the registered recyclers without any damage to the environment. It is also the duty of producers and others to raise public awareness, publications, posters or by other means against the hazards of lead. It is the responsibility of consumers to return their used batteries only to the dealers at designated collection centers to avoid environmental damage. The importer shall get himself registered with MoEF. Only one export-import (EXIM) code exists for both old and new computers, preventing targeted compliance monitoring. Furthermore, imports are often falsely declared to be for charity, going instead to informal recyclers or becoming e-waste within two or three years. Lacking an effective enforcement mechanism and awareness throughout the country, the legislation remains fruitless, as the success at selected urban areas cannot form the basis of ideal output as expected.
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Conclusion: The Basel Convention seeks to assume a moral high ground on environment and public health based on unilateral measures that are in complete disregard for free market principles, economic realities of developing countries, and that are counterproductive to the objectives of the Convention. Basel has been a success in that it provides a forum for transboundary hazardous waste issues. Also, regulations banning hazardous wastes in electronics can be somewhat attributed to Basel’s existence. But, electronic waste from the U.S. was
found dumped in environmentally unsafe ways in Nigeria in 2006. Even more, though EU has implemented legislation to enforce Basel, 48 percent of shipments were found to be illegal during a week long investigation of seventeen ports in nine EU countries in 2005. Shipments included containers of domestic waste from the United Kingdom destined for India and cable wastes from Sweden bound for China. Instead of relying on Basel to prevent unsafe hazardous waste management, Basel advocates should pursue with greater force the minimization of generation and, especially in countries where citizens are vulnerable, development of NGOs. Despite some loopholes and ambiguities, the Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal (Basel, 22 March 1989) should be considered a major achievement in international environmental law. One of its main merits is the establishment of the concept of prior informed consent, according to which the State of export must previously notify any intended movement of hazardous waste to the State of import.
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IN THE SUPREME COURT OF INDIA
Decided On: 06.09.2007 ________________________________________________________________ Research Foundation for Science
. …………………………Appellants Vs.
Union of India (UOI) and Anr
…….…………………...Respondent
________________________________________________________________ AIR 2007 SC 3118, Hon'ble Judges: Arijit Pasayat and; S.H. Kapadia, JJ
Subject: Environment
Case Note: A short question which arises for determination in this IA is whether this Court should grant permission for dismantling of the ship "Blue Lady" at Alang, Gujarat. ORDER
2. The "Blue Lady" ex SS Norway was a passenger liner built at Chantier De Altantic, St. Nazaire, France in 1961. It was a steam turbine driven vessel with a power and rating of 30,000 KW and 40,760 HP respectively. Now the vessel is registered as a Barge under the flag of Bahamas vide official number 710763. 7|Page
The vessel is very luxurious in it's kind and many dignitaries like President of America, Queen of England have travelled during it's golden period. The said ship was beached on 15/16.8.2006 off the Alang coast. The said ship was the passenger ship. It was constructed in 1952. It originated from France. Its last origin was from Norway. The ship is about 291 mt. long. It is 34 mt. wide. It has the capacity of 45886 MT. It has 16 floors. It has 1400 rooms for passengers accommodation. It has restaurant, cinema, health club and free shopping complex. 3. Alang is located on the west coast of Gujarat. It is the largest ship recycling yard in the world. It is one of the choicest ship-scrapping destination for the ship owners around the world. There are 183 plots in all to carry out the ship recycling activities. Till today Alang has provided approximately 23 million tonnes of steel in the last 10 years. On 17.2.2006 when the above writ petition came up for hearing before this Court, we found the controversy concerning ship-breaking a recurring controversy. Therefore, this Court decided to lay down norms concerning infrastructure, capacity of Alang to handle large volume of ship breaking activity, safeguards to be provided to the workers who were likely to face health- hazard on account of the incidence of ship-breaking activity, the environmental impact assessment, regulation of the said activity and strict regulation of the said activity. Accordingly, this Court constituted a Committee of Technical Experts to submit a report on the aforestated aspects. 4. We quote hereinbelow the said order dated 17.2.2006: "It is brought to our notice that the ship Clemenceau has been directed to be taken back to France. Therefore, immediate controversy relating to Clemenceau ship seems to be over. But the problem is a recurring one. First and foremost requirement as of today is to find out the infrastructural stability and adequacy of the ship breaking yard at Alang. It has to be found out whether the same are operational/operating in a way that environmental hazards and pollution are avoided and/or equipped to meet the 8|Page
requirements in that regard. For that purpose, it is necessary to constitute a Committee of technical experts who can, after obtaining views and inviting suggestions from those who would like to give them to find out whether the infrastructure as existing at Alang presently is adequate. If according to the Committee, it is not adequate it shall indicate the deficiencies, and shall also suggest remedial measures to upgrade the infrastructural facilities. For this purpose, Union of India shall, as early as practicable, constitute a Committee of technical experts, some of them having Navy background, preferably retired officers. The Committee shall submit its report to this Court within eight weeks. The expenses of the Committee shall be met by the Ministry of Environment and Forests. Since at various points of time various guidelines have been indicated, it would be appropriate if they are properly codified to be followed scrupulously by all concerned including the Government authorities." 5. In continuation of the said order dated 17.2.2006 a further order was passed by this Court on 12.3.2007 calling for a further report by TEC in which this Court directed inclusion of Gujarat Maritime Board (GMB) and Gujarat Pollution Control Board (GPCB) to assist this Court on three aspects, namely, preconditions to be satisfied by the recycler for dismantling and reusability of 80% of the asbestos. This Court also sought assistance of various authorities, including the petitioner herein, on steps to be taken to control the environmental impact of asbestos dust likely to be generated in the process of dismantling. We quote hereinbelow the said order in extenso: "Having heard learned counsel for the parties, we are of the view that a further report by the T.E.C. is required to indicate as to whether conditions stipulated have been complied with before any action can be taken on the dismantling plan. Let the applicant in I.A. No.34 place materials before T.E.C. as to how and in what manner compliance has been done. While deciding the acceptability of the stand of the applicant, the T.E.C. shall involve the Gujarat Maritime Board and 9|Page
the Gujarat Pollution Control Board and take note of their views. In the report apart from examining the general compliance of the conditions, specific focus has to be drawn on three particular aspects, namely, (a) whether pre-conditions for dismantling have been complied with; (b) whether 80% of the asbestos is reusable as is contended by the applicant; (c) what steps have been taken to control the environmental impact of asbestos dust generated in the process of dismantling. The T.E.C. shall also suggest as to which agency shall oversee and monitor the dismantling in case it recommends acceptance of the dismantling plan. The report shall be submitted within six weeks. The other aspects relating to the reversibility or impermissibility of the beaching, manner of dealing with hazardous from asbestos and other hazardous material shall be considered after the receipt of the report from the T.E.C. The T.E.C. which was constituted pursuant to the order of this court having submitted its report is stated to have become functus officio shall examine the matter as directed." 6. Ultimately, the TEC submitted its report on the aforestated aspects on 10.5.2007. That report has been accepted by this Court vide order dated 6.9.2007 in writ petition no. 657/95 etc.. We accepted that report mainly because it is all pervasive. It contains opinions of experts including retired navel officers. It indicates State-of-the-Art mechanism to regulate removal of asbestos. The report clarifies that "beaching" is an irreversible process. TEC has also examined the recycling plan and the dismantling plan submitted by the recycler. Apart from the GMB and GPCB, various other authorities like Gujarat Enviro Protection & Infrastructure Ltd. (GEPIL) have also contributed their knowledge and expertise in the preparation of the report dated 10.5.2007. There was also an apprehension rightly expressed by the petitioner regarding radio active material on board the vessel "Blue Lady". Therefore, an immediate inspection of the said vessel beached at Alang since 16.8.2006 was undertaken by Atomic Energy Regulatory Board (AERB) and by GMB. The apprehension expressed by the petitioner was 10 | P a g e
right. However, as the matter stands today, AERB and GMB have certified that the said vessel Blue Lady beached in Alang no more contains any radio active material on board the ship. 7. By the said report dated 10.5.2007, which has been accepted by us vide order dated 6.9.2007, TEC has also recommended grant of permission for dismantling of the ship "Blue Lady" at Alang (Gujarat) in accordance with the recycling plan submitted by M/s Priya Blue Industries Pvt. Ltd. (recycler). Under the said report, TEC has stated that regular monitoring of the ship-breaking operations of Blue Lady shall be undertaken by the competent authority mentioned in the report so as to ensure strict compliance with the guidelines given by TEC in respect of safety and health of the workmen and environment. At this stage, we may mention that breaking of the vessel Blue Lady will provide to this country 41000 MT of steel and it would give employment to 700 workmen. 8. In his Keynote Address, on 'Global Constitutionalism', reported in Stanford Law Review vol. 59 at p. 1155, Lord Goldsmith, Her Majesty's Attorney General (UK), stated that British Constitution though unwritten is based on three principles, namely, rule of law, commitment to fundamental freedoms and principle of proportionality. European Convention on Human Rights ("ECHR") also refers to the concept of balance. 9. In the case of Research Foundation for Science Technology National Resource Policy v. Union of India and anr. (2005) 10 SCC 510 a Division Bench of this Court has held that "precautionary principle" is a part of the concept of sustainable development. We quote hereinbelow paragraphs 16 and 43 of the said judgment, which are as follows: "16. The legal position regarding applicability of the precautionary principle and polluter-pays principle which are part of the concept of sustainable development in our country is now well settled. In Vellore Citizens' Welfare Forum v. Union 11 | P a g e
of India (1996) 5 SCC 647 a three-Judge Bench of this Court, after referring to the principles evolved in various international conferences and to the concept of "sustainable development", inter alia, held that the precautionary principle and polluter-pays principle have now emerged and govern the law in our country, as is clear from Articles 47, 48-A and 51-A( g ) of our Constitution and that, in fact, in the various environmental statutes including the Environment (Protection) Act, 1986, these concepts are already implied. These principles have been held to have become part of our law. Further, it was observed in Vellore Citizens' Welfare Forum case that these principles are accepted as part of the customary international law and hence there should be no difficulty in accepting them as part of our domestic law. Reference may also be made to the decision in the case of A.P. Pollution Control Board v. Prof. M.V. Nayudu (1999) 2 SCC 718 where, after referring to the principles noticed in Vellore Citizens' Welfare Forum case the same have been explained in more detail with a view to enable the courts and the tribunals or environmental authorities to properly apply the said principles in the matters which come before them. In this decision, it has also been observed that the principle of good governance is an accepted principle of international and domestic laws. It comprises of the rule of law, effective State institutions, transparency and accountability and public affairs, respect for human rights and the meaningful participation of citizens in the political process of their countries and in the decisions affecting their lives. Reference has also been made to Article 7 of the draft approved by the Working Group of the International Law Commission in 1996 on "Prevention of Transboundary Damage from Hazardous Activities" to include the need for the State to take necessary "legislative, administrative and other actions" to implement the duty of prevention of environmental harm. Environmental concerns have been placed on the same pedestal as human rights concerns, both being traced to Article 21 of the Constitution. It is the duty of this Court to render justice by taking all aspects into consideration. It has also been observed that with a view to ensure that there is 12 | P a g e
neither danger to the environment nor to the ecology and, at the same time, ensuring sustainable development, the court can refer scientific and technical aspects for an investigation and opinion to expert bodies. The provisions of a covenant which elucidate and go to effectuate the fundamental rights guaranteed by our Constitution, can be relied upon by courts as facets of those fundamental rights and hence enforceable as such (see People's Union for Civil Liberties v. Union of India (1997) 3 SCC 433. The Basel Convention, it cannot be doubted, effectuates the fundamental rights guaranteed under Article 21. The right to information and community participation for protection of environment and human health is also a right which flows from Article 21. The Government and authorities have, thus to motivate the public participation. These well-enshrined principles have been kept in view by us while examining and determining various aspects and facets of the problems in issue and the permissible remedies. 43. Another aspect which deserves to be noticed is about the effect of ship breaking activity covered by TOR (14). We are not suggesting discontinuing of ship- breaking activity but it deserves to be strictly and properly regulated. When the ship arrives at a port for breaking, the authorities concerned have to be vigilant about the hazardous waste which may be generated if appropriate timely action by various agencies, in particular, the Maritime Board and SPCB are not taken. The major ship-breaking activity in India is at Alang in the State of Gujarat and, therefore, the Gujarat Maritime Board and Gujarat SPCB have to be alive to the consequences of the appropriate steps to be taken before the breaking activities start. According to the recommendations of HPC, the Inter-Ministerial Committee comprising Ministry of Surface Transport, Ministry of Steel, Ministry of Labour and Ministry of Environment should be constituted with the involvement of labour and environment organisations and representatives of the ship-breaking industries. (emphais supplied)
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10. The concept of "balance" under the principle of proportionality applicable in the case of sustainable development is lucidly explained by Pasayat, J. in the judgment of this Court in the case of T.N. Godavarman Thirumalpad v. Union of India and Ors. reported in (2002) 10 SCC 606 vide para 35 which reads as under: "35. It cannot be disputed that no development is possible without some adverse effect on the ecology and environment, and the projects of public utility cannot be abandoned and it is necessary to adjust the interest of the people as well as the necessity to maintain the environment. A balance has to be struck between the two interests. Where the commercial venture or enterprise would bring in results which are far more useful for the people, difficulty of a small number of people has to be bypassed. The comparative hardships have to be balanced and the convenience and benefit to a larger section of the people has to get primacy over comparatively lesser hardship." The above paragraphs indicate that while applying the concept of "sustainable development" one has to keep in mind the "principle of proportionality" based on the concept of balance. It is an exercise in which we have to balance the priorities of development on one hand and environmental protection on the other hand. 11. India after globalization is an emergent economy along with Brazil, Russia and China. India has economic growth of above 9%. However, that growth is lopsided. A large section of the population lives below poverty line. India has largest number of youth in the world. Unemployment is endemic. Article 21/14 is the heart of the Chapter of fundamental rights. Equality of opportunity is the basic theme of Article 14. In an emergent economy, the principle of proportionality based on the concept of balance is important. It provides level playing field to different stakeholders. Ship breaking is an industry. When we apply the principle of sustainable development, we need to keep in mind the concept of development on one hand and the concepts like generation of revenue, employment and public 14 | P a g e
interest on the other hand. This is where the principle of proportionality comes in. Even in the case of Blue Lady, the figures indicate that 700 workers would be employed in ship breaking. Further, 41000 MT of steel would be made available. To that extent, there will be less pressure on mining activity elsewhere. Even in the judgment, referred to above, vide para 43, it has been observed that this Court is not in favour of discontinuance of ship-breaking activity. However, this Court has held that the said activity needs to be strictly and properly regulated. This concept of balancing is given importance by Dr. Amartya Sen in his book "Development as Freedom". Today ship-breaking provides resources not only in terms of steel but also in terms of employment, skill and capability. Competition exists in the said business of ship-breaking amongst Bangladesh, Pakistan and India. In our view, if "capability" is a resource with our skilled workers it needs to be protected by strict implementation of Health Hazard Preventive Measures suggested in the report of TEC and implementation of Recycling Plans, generation of pollutants like asbestos to the extent of 20% can be almost eliminated. As stated, 85% of asbestos is in form of ACM in panels which is reusable. Therefore, the report provides State-of-the-Art mechanism which is the key element of "sustainable development". 12. One of the main objections raised on behalf of the petitioner was regarding non-quantification of two contaminants, namely, ACM and PCB (rubber). At this stage, we may clarify that ACM exists as material of construction in various vessel components like partitions, walls, ceilings etc. which are an integral part of the vessel structure. In the present case, the vessel does not contain single kilogram of asbestos and/or ACM as cargo. However, there is presence of ACM as "material of construction" in various vessel components like partitions, walls, ceiling etc.. Major quantity of ACM (85%) is in the partitions and ceilings of rooms and galleries. These ACMs are in the panels. TEC, in its report, stated that recyclable material alone can be sold, therefore, PCB cannot be sold. The report 15 | P a g e
further indicates that the quantity of PCB in the present case has to be dumped in land-fills. It is important to note that there are only two alternatives, namely, incineration or dumping PCB in land-fills. In both the cases, there is likelihood of pollution. As regards asbestos is concerned, we find that 85% is insulation and panels. This is where the dismantling plan has to be applied. It is this plan which takes care of the panels and insulation containing asbestos. Under section 3.3.2, the recycler was required to submit a dismantling plan containing requirements to be complied with. We quote hereinbelow section 3.3.2 of the report of the Committee of Technical Experts on Ship Breaking Activities dated 30.8.2006: "3.3.2. Ship Specific Dismantling Plan: Before starting the recycling process, the recycler should submit a Dismantling Plan to the authorities, which should include: a) Details about the ship, and in particular, a fair assessment of hazardous wastes/hazardous materials. b) Ship breaking schedules with sequence of work. c) Operational work procedures. d) Availability of material handling equipment and PPEs. e) Plan for removal of oil and cleaning of tanks. f) Hazardous waste handling and disposal plan. g) 'Gas-free and fit for hot work' certificate issued by the Department of Explosives, or any competent agency authorized by the Department of Explosives. h) Identification and marking of all non-breathable spaces by the Recycler.
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i) Identification and marking of all places containing/likely to contain hazardous substances/hazardous wastes. j) Confirmation to the effect that ballast water has been exchanged in the high seas. The tasks should address all the three phases of recycling, i.e. i) Preparation phase. ii) Dismantling phase. iii) Waste stream management k) Asbestos being a major area of concern, the scheme for removing asbestos, and asbestos containing materials (ACMs) on board, and on shore, should be specifically provided. The plan should include arrangements for handling, treatment and disposal. Locations having asbestos/ACMs should be marked before commencing dismantling operations. l) Systems and procedures to be followed to document and keep track of all hazardous waste generated during recycling, as well as hazardous substances found onboard the ship, and their transport to the disposal facility or registered recycling facility should be provided." 13. The report dated 10.5.2007 of TEC states that the Dismantling Plan submitted by recycler in the case of Blue Lady complies with section 3.3.2. As stated above, the "precautionary principle" is embedded in the doctrine of sustainable development. In the present case, one of the main apprehensions, justifiable, concerns removal of ACM and PCB from engine room, vent room and insulated pipelines. According to the removal plan, all major quantity of ACM (85%) is in form of wall partitions, ceiling and roofing in rooms and gallery. It is reusable. Therefore, the panels, partitions, ceilings etc. have to be removed in such a way that the ACMs are not damaged. The removal plan submitted by the recycler has 17 | P a g e
been approved by the TEC. Similarly, air monitoring has to be conducted for the air-borne ACM, if any. For that purpose the Committee has recommended appropriate respiratory protection to be provided to the workmen. For each category of work to be done in different areas of the vessel, gears have been provided to the workmen in the form of whole body coveralls, gloves, safety shoes, helmet, safety goggles etc. Similarly, as regards waste generation, the TEC report suggests by way of protection air monitoring respiratory protection to employees, leak tests, negative pressure checks etc. Similarly, storage of contaminated wastes in the land-fills has also been incorporated in the recommendations of the TEC. Therefore, in our view, in the light of the above conditions to be fulfilled by the recycler, the principle of sustainable development based on the concept of "balance" stands satisfied. 14. We may mention one important aspect. Asbestos in the panel exists even in false ceiling constructed in commercial establishments. It is only when those panels are broken that asbestos as a hazardous substance emerges. In the present case, 85% of the asbestos is in the panels and insulation that quantity is reusable. As far as dismantling is concerned, the plan complies with section 3.3.2. However, it is likely that in some cases asbestos as a substance may emerge and, therefore, the report of TEC has taken care to look into and approve the Recycling Management Plan. In our view, the report of TEC is foolproof. It has taken into account international standards to regulate ship-breaking activity. The quantity of PCB has been determined by Gujarat Enviro Protection & Infrastructure Ltd. ("GEPIL"). There is NOC given by GMB as also by GPCB in the matter of ship breaking of the ship "Blue Lady". The report dated 10.5.2007 has evolved Stateof-the-Art mechanism to regulate removal of asbestos. Recycling is a key element of sustainable development. The Committee has examined each and every aspect concerning recycling and dismantling of the ship "Blue Lady". Lastly, we may point out that there is no dispute that on 15/16.8.2006 the vessel beached off 18 | P a g e
Alang coast. It is not in dispute that the process of beaching is irreversible. Taking into account the contours of TEC report dated 10.5.2007 and the opinion of TEC that the recycler M/s Priya Blue Industries Pvt. Ltd. has complied with the norms regarding dismantling and recycling, we accept the report of the TEC dated 10.5.2007 and we accordingly grant permission to the said recycler to dismantle the said ship "Blue Lady" as recommended by TEC (see: para 12 of the TEC report dated 10.5.2007). 15. Accordingly the I.A. stands disposed of.
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IN THE SUPREME COURT OF INDIA
Civil Appeal No. 7660 of 1997
Decided On: 05.01.2005
________________________________________________________________
Research Foundation for Science Technology and Natural Resources Policy …………………………………... Appellants Vs. Union of India (UOI) and Anr. …………………………………… Respondent
Writ Petition (C) No. 657 of 1995
SLP (C) No. 16175 of 1997
[2005 (2) JCR 294 (SC)] Hon'ble Judges: Y.K. Sabharwal and S.H. Kapadia, JJ.
Subject:
Environment
Acts/Rules/Orders:
Environment (Protection) Act, 1986; The Hazardous Wastes (Management and Handling) Rules, 1989 - Rules 3, 15(2); Constitution of India - Articles 7, 21, 47, 48A and 51A Case Note: Constitution - Environment (Protection) Act, 1986 - The Hazardous Wastes (Management and Handling) Rules, 1989 - Rules 3, 15(2) - Constitution of
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India - Articles 7, 21, 47, 48A, 51A – Hazardous Waste – Dumping of – Precautionary Principle and polluter pays principle – Applicability of – Report of High Powered committee relating to presence of Hazardous waste oil in 133 containers lying at Nhava Sheva Port – Illegal import of waste oil in 133 containers in garb of lubricating oil by importers – Issue of show cause notices to 15 importers to show as to why consignment not to be ordered to be re-exported or destroyed at their cost – Issue as to appropriate directions for dealing with consignments in question on basis of precautionary principle and polluter pays principle – Precautionary principle and polluter pays principle held fully applicable – Recommendation of Monitoring Committee that only appropriate course to protect environment was to direct destruction of consignments by incineration – Direction given for destruction of 133 containers expeditiously by incineration at the cost of importers – Importers held liable to pay amounts to be spent for destroying hazardous waste on basis of precautionary principle and polluter pays principle “JUDGMENT”
Y.K. Sabharwal, J.
1. Considering the alarming situation created by dumping of hazardous waste, its generation and serious and irreversible damage as a result thereof to the environment, flora and fauna, and also having regard to the magnitude of the problem as a result of failure of the authorities to appreciate the gravity of situation and the need for prompt measures being taken to prevent serious and adverse consequences, a High Powered Committee (HPC) was constituted by this Court with Prof.M.G.K. Menon as its Chairman, in terms of order dated 30 th October, 1997. The Committee comprised of experts from different disciplines
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and fields and was required to examine all matters in depth relating to hazardous waste. 2. On consideration of the detailed reports submitted by the HPC various directions have been issued by this Court from time to time. Presently, we are concerned with the presence of hazardous waste oil in 133 containers lying at Nhava Sheva Port as noticed by HPC. On the directions of this Court, the oil contained in the said 133 containers was sent for laboratory test to determine whether same is hazardous waste oil or not. It has been found to be hazardous waste. 3. On consideration of report of HPC, the result of laboratory test and entire material on record, this Court came to the prima facie conclusion that importers illegally imported waste oil in 133 containers in the garb of lubricating oil. In terms of the order dated 25 th September, 2003, notices were directed to be issued to 15 importers who imported the said consignment as also to the Commissioner of Customs. The importers were directed to show cause why the consignment shall not be ordered to be re-exported or destroyed at their cost. Since, the Ministry of Environment and Forests had spent a sum of Rs. 6.35 lakhs on the laboratory tests, the importers were also required to show cause why they said amount be not recovered from them and why all of them shall not be directed to make payment of compensation on polluter pays principle and other action taken against them. 4. The affidavits showing cause were filed by the importers. During the course of hearing, one of the contentions urged on behalf of the importers was that in respect of consignments in question, adjudicating proceedings were pending before Commissioner of Customs, Mumbai and this Court may, therefore, defer the decision on the aspect of re-export or destruction of the goods. In the order dated 11th March, 2004, it was observed that for the purpose of present 22 | P a g e
proceedings, it is strictly not necessary to await the final decision of adjudication proceedings but a report from the Commissioner of Customs may assist the court in deciding the aspects indicated in the order dated 25 th September, 2003. In this view, the Commissioner of Customs was directed to send a report to this Court on the question whether the consignment in issue is waste oil within the meaning of the term 'waste oil' as per Basel Convention or Hazardous Waste Rules, 1989 as amended in the year 2000 and/or as amended in the year 2003 also having regard to the relevant notifications issued on this aspect. The Commissioner of Customs was directed, to give reasonable opportunity to the importers to put forth their viewpoint before him while examining the matter and was further directed to associate the Monitoring Committee that was constituted in terms of orders dated 14th October, 2003 reported in 2003 (9) SCALE 303. The question whether any further testing is required to be done as claimed by the importers was left to be decided by the Commissioner in consultation with the Monitoring Committee. 5. Detailed reports have been filed by Commissioner of Customs (Imports), Mumbai and the Monitoring Committee. 6. The report of the Commissioner of Customs sets out a brief history of the case, history of various Conventions and Laws formulated thereupon from time to time, correlating the same to the various test findings. The brief history, inter alia, states that:
"In the month of August-September 2000, the Central Intelligence Unit, New Custom House, Mumbai developed intelligence that large volumes of Furnace Oil were to be imported as containerized cargo, at the Jawaharlal Nehru Port at undervalued prices. Accordingly the Central Intelligence Unit maintained a discreet watch at such consignments of Furnace Oil imported at JN Port. Emphasis was laid on Furnace oil stuffed in containers, as the same was quite unusual. Furnace Oil is basically imported in bulk on account of its large 23 | P a g e
volumetric requirements by the industry and its relatively low value makes its import as containerized cargo economically unviable unless the value is suppressed, or some other miss-declaration was restored to, to offset the increased cost of packing and transportation in containers. True to the intelligence gathered, a large number of consignments of Furnace oil, packed in containers arrived at JN port in Aug-Sept and the same were detained for further investigation. In all these cases the declared prices were in the range of US$ 90 to 125 per MT as against the erstwhile international price of US$ 150, when imported in bulk. During the course of the investigation, samples were sent to the departmental laboratory for conducting tests. The standard reference parameters available pertained to those of Fuel Oil under BIS 1593-1982. Under these standards certain characteristics like Acidity, Ash content, Flash point, Kinematics viscosity, Sulphur content and Water content for Fuel oils have been prescribed by the Bureau of Indian Standards and depending on the specifications the fuel oils get divided into four grades. It is pertinent to note that these standards do not define waste oil or hazardous wastes. Initial testing of samples, by the Custom House Laboratory, drawn from some of the consignments indicated that the goods were not Furnace oil. The Laboratory, however, could not categorically state whether the samples were used/waste oil, as they did not have the standards/specifications of used/waste oil. Inquiries made with I.O.C. and H.P.C.L also revealed that though they could test and report whether the oil was conforming to the standards of Fuel/Furnace oil but they were not in a position to state whether the same were used/waste oil. As categorical test reports were not forthcoming it was decided to get the samples tested and an opinion obtained from the Central Revenue Control Laboratory (CRCL), New Delhi. Fourteen samples, pertaining to Vidya Chemical Corporation, PCS Petrochem, Shiv Priya Overseas, Royal Implex, Eleven Star Esscon and Valley International, were accordingly forwarded to CRCL for testing and their opinion 24 | P a g e
on 24.08.2000. The test results forwarded by the CRCL in all the 14 samples indicated that none of the samples tallied with the specifications of Furnace Oil and all were off specification material i.e. waste oil. Thereafter the CIU seized all the consignments involving 158 containers. One consignment comprising of 25 containers was conditionally released on execution of Bank Guarantee for the differential Duty. Thus a total of 133 containers were left. On 5.10.2001 the MPCB forwarded a final report from the UP to the Custom House wherein it was stated that the halogen content tests were done at the Shriram Institute of Industrial Research (SIIR), New Delhi and the PCB content tests were done at the National Institute of Oceanography, Goa. The report concluded that all the 20 samples sent to the IIP were found to be hazardous. In regard to Basel Convention, the report states as under: "The Basel Convention on the Control of Trans boundary Movements of Hazardous Wastes and their Disposal was adopted by the conference of the Plenipotentiaries on 22.03.1989. Article I of the Convention, dealing with the scope of the convention, defined 'Hazardous Wastes' as follows: (a) Wastes that belong to any category contained in Annexure I, unless they do not possess any of the characteristics contained in Annexure III; and (b) Wastes that are not covered under paragraph (a) but are defined as or are considered to be, hazardous wastes by the domestic legislation of the party of export, import or transit. All these definitions and various clauses in the Convention indicate that the contents of the convention cannot be seen in isolation to the follow-up laws framed in this regard by the individual member countries. The contents of the Convention are only in the form of guidelines to the member nations and the final question of whether the material is Hazardous Waste or not cannot be answered 25 | P a g e
on the basis of the contents of the Convention alone. With reference to the presence of PCBs in waste oils, the National Laws framed need to be examined to categorically state whether the subject cargo is hazardous or not.
The
contention of all the importers that their material had not violated the 50 ppm limit prescribed in the Basel Convention and were thus not Hazardous Waste has not strength if the same are not examined in the light of the Laws framed by the Country in the process of aligning with the recommendations of the Convention as the contents of the Convention are by themselves not any Law that could be implemented (to be discussed later)." 7. The report makes a detailed reference to The Hazardous Wastes (Management and Handling) Rules, 1989 as introduced in 1989 and amendments effected in January 2000 and in the year 2003. In regard to amendments made in January 2000 where after the imports were made, *he report notices as under : "For the purpose of import, Rule 3(i) (c) defined Hazardous Waste as those listed in List 'A' and 'B' of Schedule-3 (Part A) if they possessed any of the hazardous characteristics listed in Part-B of Schedule. List A of Schedule 3 is a reflection of List A as Annex III of the Basel Convention and the hazardous wastes appearing in this list of Schedule 3 are restricted and cannot be allowed to be imported into the country without DGFT Licence. In this list attention is drawn to the entry 'Waste mineral oils unfit for their originally intended use' against Basel No A 3020. Such Waste mineral Oils would be characterized as hazardous if they possess any of the Characteristics enumerated in Part B of Schedule 3. The presence of PCB contents in Waste mineral oils renders the material carcinogenic, bio accumulative and ecotoxic. Therefore, any consignment of Waste mineral Oil having PCB would be rendered Hazardous."
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8. Thus, from the rules, it is clear and evident that the presence of PCB contents in any consignment of waste mineral oil would render such oil as hazardous waste. 9. Noticing that the entire cargo had been imported without proper licence and its movement to the Country is illegal, reference has been made in the report to Rule 15(2) which provides that (i) the waste in question shall be shipped back within thirty days either to the exporter or to the exporting country or (ii) shall be disposed of within thirty days from the date of off-loading subject to inability to comply with Sub-rule 2(i), in accordance with the procedure laid down by the State Pollution Control Board or Committee in consultation with Central Pollution Control Board. 10. In regard to the possibility of re-export of the cargo, reference has been made to Article 9(2)(a) of the Basel Convention which provides that in the case of illegal traffic as a result of conduct on the part of the exporter, the state of export shall ensure that the waste in question is taken back by the exporter within 30 days from the time the state of export was informed. It has been stated that even though there are provisions, both in International Conventions, like Basel Convention, and in our national laws, a holistic view needs to be taken in view of the prevailing circumstances. The exporters of the cargo may not take the cargo after 4 years. Besides a whole range of time consuming protocol measures may be involved. The re-export of cargo at this point of time and under the conditions in which the cargo was lying has been ruled out also stating that issues like transportation charges and the ownership and acceptability of the cargo at the destination point may be highly vexed and difficult to surmount. In this backdrop, the possibility of disposal locally as a one-time measure was examined. 11. Further, the report recommends that the importers may be directed to pay all the testing charges incurred by MPCB (Rs. 6.5 lakhs) and Customs (Rs. 7.5 lakhs 27 | P a g e
approximately) from the initial stage and till final disposal of goods. It also notices that the two importers did not appear for personal hearing despite several reminders. All the 15 importers have been divided into five different categories. 12. The attention of this Court has been drawn to the condition of the waste oil stock lying in the Customs area pointing out that many of the drums have exploded and the contents are spread in the area which is definitely a fire hazard and is also causing grave damage to the environment. Waste Oils From Petroleum Origins and Sources [(Y8) Basel Convention] to contend that the presence of PCBs and waste oil as a secondary fuel upto 50 PPM was fairly acceptable in respect of marketing and use. On this basis and with reference to the test report, it was contended that since the PCB in the consignments in question being minimal and negligible, there was no contravention of the Basel Convention . It was contended that as per recommendations of Commissioner of Customs re-refining was possible but the Monitoring Committee has only recommended destruction by incineration without any legal basis. 13. The Monitoring Committee comprises of experts in the field. It has recommended destruction of the consignment by incineration. The PCBs may be within permissible limit insofar as parameters of Basel Convention are concerned but, at the same time, it has to be kept in view that parameters fixed by the Basel Convention. 14. The liability of the importers to pay the amounts to be spent for destroying the goods in question cannot be doubted on applicability of precautionary principle and polluter pays principle. These principles are part of the environmental law of India. There is constitutional mandate to protect and improve the environment. In order to fulfill the constitutional mandate various
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legislations have been enacted with attempt to solve the problem of environmental degradation. 15. Having regard to the aforesaid principle, the import of waste oil containing PCBs of detectable limit has been banned in India. The fact that PCBs content in the consignments was only marginal or minimal and under Basel Convention its permissible limit is 50 PPM, is of no consequence. Judging by Indian conditions, our law has provided the limit of PCBs which if of detectable limits, the import is not allowed. 16. The afore noted precautionary principles are fully applicable to the facts and circumstances of the case and we have no manner of doubt that the only appropriate course to protect environments is to direct the destruction of the consignments by incineration in terms discussed above and as recommended by the Monitoring Committee. 17. The aforesaid 133 containers are directed to be expeditiously destroyed by incineration as per the recommendations of the Monitoring Committee and under its supervision subject to and in terms of this order. The cost of incineration shall be deposited by the importers with the Monitoring Committee within four weeks. The Monitoring Committee will ensure the timely destruction of the oil at the incinerators mentioned in its report. After the destruction of the oil in question, a compliance report shall be filed by the Monitoring Committee. All concerned are directed to render full assistance and cooperation to the Monitoring Committee.
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