Waste Imperialism Unfolding, Commerce Ministry Acting Facilitator

Hazardous Waste Trade Update
October 12, 2011

Supreme Court’s Orders Disregarded with impunity

Global Treaty for Banning Hazardous Waste Trade on Death Bed

EU, USA, Japan Seek Euthanasia, Basel Convention Secretariat for Suicide

The matter related to UN’s Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal that bans exports of toxic wastes from rich countries to poorer countries was heard on October 11, 2011 in the Supreme Court. In its earlier order dated August 17, 2011, the court said, "This matter concerns certain issues of grave public importance."

ToxicsWatch Alliance (TWA) is an applicant in the case and has been a participant in the meetings of the Basel Convention. The bench of Justice Altamas Kabir and Justice H.L. Gokhale has asked the central government to file an affidavit on compliance with apex court’s order dated October 14, 2003 within four weeks. The order assumes significance in the wake of the upcoming tenth meeting of the Conference of the Parties to the Basel Convention in Cartagena, Colombia (17 -21 October 2011). The Basel Convention was signed by India on 15" March, 1990 and ratified on 24" June, 1992. It been ratified by 172 countries.

There are 19 references to Basel Convention in the Supreme Court’s order. Paragraph 1 of the order reads: “Hazardous Wastes are highly toxic in nature. The industrialization has had the effect of generation of huge quantities of hazardous wastes. These and other side effects of development gave birth to principle of sustainable development so as to sustain industrial growth. The hazardous waste required adequate and proper control and handling. Efforts are required to be made to minimise it. In developing nations, there are additional problems including that of dumping of hazardous waste on their lands by some of the nations where cost of destruction of such waste is felt very heavy. These and other allied problems gave birth to Basel Convention. The key objectives of the Basel Convention are: “ to minimize the generation of hazardous wastes in terms of quantity and hazardousness; to dispose of them as close to the source of generation as possible; to reduce the transboundry movement of hazardous wastes."”

The hearing happened in the backdrop of British Environment Agency penalizing two British companies, M W White (Norwich) Ltd and Williams Recycling (UK) Ltd with fines of £5,000 each after an illegal shipment of mixed waste destined for India was stopped at Felixstowe Port, Britain's premier port. British Magistrates were told that the Basel Convention has been ratified by both UK and India and Europe has a similar legislation.

M W White (Norwich) Ltd was charged with violation of UK’s section 34(1) (c)(ii) and (6) of the Environmental Protection Act 1990. Between 12 January 2010 and 19 January 2010, the company being a person who keeps and treats controlled waste, failed to comply with the Duty of Care imposed by Section 34(1) and (5) of the Environmental Protection Act 1990 in that on the transfer of such waste, it failed to ensure that there was transferred such written description of the waste as would have enabled other persons to avoid a contravention of Section 33 of the said Act and to comply with the Duty under Section 34(1) of the said Act as respects the escape of waste.

Williams Recycling (UK) Ltd was charged with the violation of European Regulations 23B (2) and 58 of the Transfrontier Shipment of Waste Regulations 2007. Between 12 January 2010 and 19 January 2010, and by virtue of Article and 37(5) of the European Waste Shipment Regulation EC 1013/2006, the company transported mixed waste, to India, a country to which the OECD decision does not apply, without the procedure of prior written notification and consent of Article 35 of said European Regulation.

TWA has written UK Environment Agency seeking further details about the case and have been promised a reply within a week. On October 11, 2011, TWA received information from Japan External Trade Organization (JETRO) that Indian customs authorities have refused departure of some Indian company’s e-waste consignment to Japan citing Basel Convention. These incidents in the context of upcoming meeting of Basel Convention and the hearing in the Supreme Court appear motivated.

These illustrate how both international and national laws and enforcement of laws alone is a guarantee against such attempts at dumping of hazardous wastes in the country.

The court has taken cognisance of 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, health of animals and human beings” and the violation of Article 32, Article 14 and 21 of the Constitution of India.

It is for the Government of India to enact suitable legislations to enforce ban on hazardous waste trade but instead of doing so it has subverted the intent of treaty by having Hazardous Waste (Management, Handling and Transboundary Movement) Fourth Amendment Rules, 2010 as a subordinate legislation. This Rule has been amended four rimes in 2010 alone. Its Chapter IV permits trade in hazardous waste. This Rule one of the most Environmental Rules since its inception in 1989. Its Schedule VI does ban import and export of 30 types of hazardous wastes including Waste Asbestos (Dust and Fibers) but it only reveals that all the other kinds of hazardous wastes trade is allowed as per law. Even here the Ministry argues that when Waste Asbestos (Dust and Fibers) is embedded in structure of an end-of life ship, it can be deemed waste, as if there can be an entity like virgin waste. This holds true for other wastes as well and a classic case of linguistic sleight of hand.

One the face of it, it is the Ministry of Environment and Forests which is to deal with the transboundary movement of the hazardous wastes and to grant permission for transit of the hazardous wastes through any part of India under clause 12. Clause 12 reads: “No import of the hazardous wastes from any country to India for disposal shall be permitted. The import of hazardous waste from any country shall be permitted only for the recycling or recovery or reuse. The export of hazardous wastes from India may be allowed to an actual user of the wastes or operator of a disposal facility with the Prior Informed Consent of the importing country to ensure environmentally sound management of the hazardous wastes in question”. Section 16 provides the procedure for import of hazardous waste. It reads: “The importer shall also inform the concerned State Pollution Control Board and the Central Pollution Control Board, the date and time of the arrival of the consignment of the hazardous waste ten days in advance.” Clearly, it is a case of legitimizing hazardous waste trade for good. After doing so Clause 17 reads: The export and import of hazardous wastes from and into India shall be deemed illegal if…it results in deliberate disposal (i.e. dumping) of hazardous wastes in contravention of the Basel Convention and of general principles of International and National law…In case of illegal import of the hazardous wastes, the importer shall re-export the waste in question at his cost within a period of ninety days from the date of its arrival into India and its implementation will be ensured by the concerned State Pollution Control Board.” This is an exercise in lip-service.

Schedule IV provides the list of Hazardous Wastes requiring registration for recycling/reprocessing that includes Used Oil and Waste Oil among others implying that their trade is allowed as well.

The Convention categorically specifically affirms the right of any state to prohibit the import of hazardous wastes into its territory. This happened despite the resistance from such countries as the USA, Germany, United Kingdom, Australia, Canada, South Korea and Japan. But non-cooperation from these countries has led to unprecedented hazardous waste trade in the name of recycling of commodities like scrap metals .

The prohibition of the transboundary trade in hazardous waste is meant to stop the transfer of a state's polluting activity from one national jurisdiction to another and holds the source country is held liable for transboundary pollution. Stringent domestic environmental standards by many rich countries has made the has made it almost impossible for them to undertake legal domestic disposal. They have chosen a escape route of exporting their waste to poorer countries like India which seems legally impotent to resist it. Even the orders of Supreme Court of India has failed to stop hazardous waste exporters and their vessels from mislabelling shipments, faking documents and bribing maritime, customs, environment and shipping ministry officers so far.

It is relevant to recollect that USA has not ratified the UN treaty generates more hazardous waste than any other nation in the world and it is a primary exporter despite having the capacity to deal with it. In the past, Chinese government had filed a formal protest to the Secretariat of the Basel Convention over alleged illegal transfers of hazardous waste from the U.S. to China. But this had little legal significance because USA is not a party to the UN treaty. Like China no nation has legal redress against USA and other such countries which are not parties to the treaty.

The stance of Government of USA is guided by U.S. Chamber of Commerce, the world’s largest business federation representing the interests of more than 3 million businesses, International Chamber of Commerce (ICC), represents companies from 130 countries and a member of UN’s Global Compact.

ICC has been instrumental in outwitting the UN ban on hazardous waste trade through bilateral Free Trade Agreements between countries. In one of its position paper on the Basel Convention, ICC has even called for the ban to be stopped by the World Trade Organization (WTO). This undermines the customary environmental law principles. As a guiding legal principle for international environmental law in Principle 21 of the Stockholm Declaration, issued by the first U.N. Conference on the Human Environment in 1972 reads: “States have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction.

Of later under the influence of transnational business enterprises, Basel Convention Secretariat seems to have adopted the logic of World Bank wherein it says, “The measurements of the costs of health impairing pollution depends on the foregone earnings from increased morbidity and mortality. From this point of view a given amount of health impairing pollution should be done in the country with the lowest cost, which will be the country with the lowest wages. I think the economic logic behind dumping a load of toxic waste in the lowest wage country is impeccable and we should face up to that.”

It further says, “Only the lamentable facts that so much pollution is generated by non-tradable industries (transport, electrical generation) and that the unit transport costs of solid waste are so high prevent world welfare enhancing trade in air pollution and waste.” World Bank’s considered opinion dated December 12, 1991 was authored by Lawrence H. Summers, its chief economist. Under tremendous influence of lobbying of EU, USA, Japan in myriad disguises, India’s Union Commerce Ministry has adopted this logic of World Bank. Summers was once Secretary of the United States Treasury as well and till recently he was President of US National Economic Council.

It has rightly been said that foreign companies operating in developing countries like India usually insist on maintaining the secrecy of their production processes, sometimes making it impossible for the developing country to know how much and what kinds of solid wastes have already been deposited on their territory. It is hard to imagine how India can effectively regulate pollution from wastes under such conditions.

In such a context, the fact that our Foreign Trade Policy maintains that no licence was required to import waste paper. Commerce Ministry’s Director General of Foreign Trade (DGFT) allows only for the pre-shipment inspection certificates issued by approved agencies, stating that imported material is free from any hazardous waste, including municipal waste and bio-medical waste, should be accepted. This is hardly sufficient. The DGFT allows hazardous waste trade by reincarnating it as a reusable or recyclable material.

Earlier, DGFT had proposed its registration scheme covering imports of scrap but now it seems to have caved due to objections from the US Institute of Scrap Recycling Industries and the Indian scrap steel industry. The position of the Ministry of Commerce (the DGFT) is, in effect, in complete contrast to the revised EU Waste Shipment Regulations introduced in July 2007, to which all EU member nations need to comply. The EU rules now require a tracking document to accompany shipments of non-hazardous materials designated as “waste”, including recyclables. Bureau of International Recycling (BIR), the international trade federation representing the world’s recycling industry, covering in particular ferrous and non-ferrous metals etc felt that the complexity of information required by the new EU rules was “totally illogical”, complained that it did not offer clear environment benefit. The negotiations for the proposed India-EU Free Trade Agreements seems to indicate that BIR’s influence is at work whereby waste is sought to be defined a non new goods, as a linguistic sleight of hand.

Schedule VII of Hazardous Waste (Management, Handling and Transboundary Movement) Fourth Amendment Rules, 2010 provides the list of authorities and their corresponding duties. It provides for DGFT, set up under Foreign Trade (Development Regulation) Act, 1972 to Grant “licence for import of hazardous wastes”. This is an illustration of the influence of U.S. Chamber of Commerce, ICC, BIR and Japanese hazardous waste traders despite unmindful of Basel Convention and Supreme Court’s order.

Meanwhile, a six member Standing Monitoring Committee (SMC) on Shipbreaking has been set up vide Office Memorandum of Environment Ministry dated 10.12.2009 to monitor/review compliance to the recommendations of the Committee of Technical Experts (CTE) and the Hon’ble Supreme Court directions dated 6.9.2007 on ship breaking activities in the country. This SMC has noted that the hazardous waste landfill in Alang has been filled up. The court had ruled that in the matter of ship breaking activities, “At the international Level, India should participate in international meetings on ship breaking at the Level of the International Maritime Organization and the Basel Convention`s Technical Working Group with a clear mandate for the decontamination of ships of their hazardous substances such as asbestos, waste oil, gas and PCBs prior to exports to India for breaking. Participation should include from Central and State Level.” This direction too has been ignored with impunity. Consequently, more than 120 ships have entered Indian waters on fake documents for dismantling on the Alang beach causing death of some 27 workers till September 2011.

Supreme Court judgment had passed 29 specific directions with deadlines and had set up a 10 member Supreme Court Monitoring Committee (SCMC) to ensure compliance with its directions. Not only has the government failed to comply with these directions, it has mutilated and disbanded the Monitoring Committee without court’s permission with impunity. Hazardous waste traders are indeed quite influential. The matter will come up for hearing in December 2011.

For Details: Gopal Krishna, ToxicsWatch Alliance, Mb: 9818089660, Web: toxicswatch.blogspot.com