Ban hazardous waste trade and entry of dead ships; comply with Basel Convention & re-examine new hazardous waste rules

To

Shri Saurabh Chandra
Secretary
Union Ministry of Commerce & Industry
Government of India
New Delhi

Shri Pradeep K Sinha
Secretary
Union Minister of Shipping
Government of India
New Delhi

Dr.T Chatterjee, Secretary
Union Ministry of Environment & Forests
Government of India
New Delhi
Subject- Ban hazardous waste trade and entry of dead ships; comply with Basel Convention, re-examine subordinate legislations for hazardous waste management & trade
Sir,

This is with reference to the subordinate legislations for Hazardous Waste Management and Trade under Environment Protection Act, 1986, reply of Union Minister of Environment and Forests on May 21, 2012, reply of Union Minister of Shipping dated May 7, 2012 in the Parliament and Supreme Court’s order dated October 14, 2003 and February 29, 2012.
I submit that the Union Minister of Environment and Forests said, "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.

I submit that the Minister’s reply that defines hazardous waste as recyclable material appears to be an exercise in sophistry. Her reply and other relevant documents revealing the true nature of the goings on are attached.

I submit that the Union Government has been indicted by the Parliamentary Standing Committee on Subordinate Legislation in its report “Non-implementation of oft-repeated recommendations of Committee on Subordinate Legislation, Lok Sabha by various Ministries” dated December 16, 2011. It appears that even Union Ministry of Environment & Forests, Union Ministry of Commerce & Industry and Union Ministry of Shipping are following the same path in the matter of subordinate legislations for Hazardous Waste Management and Trade under Environment Protection Act, 1986.

I submit that it is clear from the existing Hazardous Waste Rules (including the amendments till date) that it promotes trade in hazardous waste unmindful of the National Environment Policy that acknowledges how "Environmental factors are estimated as being responsible in some cases for nearly 20 percent of the burden of disease in India".

I wish to draw your attention towards the first three paragraphs of Supreme Court’s landmark order dated October 14, 2003. It 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 principles 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 transboundary movement of hazardous wastes.”
2. Due to 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, the petitioner approached this Court under Article 32 complaining of violation of Article 14 and 21 of the Constitution of India.
3. The petitioner has, inter alia, relied upon the Basel Convention. The Basel Convention was signed by India on 15th March, 1990 and ratified on 24th June, 1992.’

I submit that in a order dated February 29, 2012, Supreme Court held that the application which “has been filed by Dr. Claude Alvares, member of the Supreme Court Monitoring Committee, praying for an injunction to restrain Union of India from finalising of a Notification on hazardous wastes dated 28th September, 2007, has been rendered infructuous on account of the publication of the Hazardous Wastes (Management, Handling & Transboundary Movement) Rules, 2008. It appears that the prayer of Dr.Claude Alvares, a member of the SCMC did not get relief due to limitations of jurisdiction of the Supreme Court. The Supreme Court has used word ‘infructuous’ for SCMC’s application. In effect, Supreme Court was accepted the Rules as a fait accompli. Its dictionary meaning is ‘unfruitful’ and ‘fruitless’. I submit that these Rules will lead to the growth of bad and sour fruits that the present and future generation of Indians will be compelled to eat when hazardous waste and chemicals enter our food chain.

I also wish to draw your attention to the address of Shri M.N. Krishnamani, President, Supreme Court Bar Association on Law Day wherein he stated that “Most of the legal matters become infructuous after long period of pendency.” I submit that it is not a legal matter alone. The new Hazardous Waste Rules are a matter of forcing the present and future generation to accept the fate of living with contaminated blood in our veins and arteries.
I take this opportunity to appeal to both the ministries of Environment and Commerce to re-examine 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 original Notification is attached.

I submit that you have the opportunity to change this situation. As senior officers whatever you do, others after you will try to do the same; whatever standards you setup, they try to set up the same standard.

I submit that both 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 namely,Dr.Claude Alvares and Dr.D.B. Boralkar should be invited by you to hear their testimonies. Prof. Menon should also be invited besides Shri Sanjay Parikh, lawyer Supreme Court who has been pursuing the case selflessly since 1995. They can reveal the plot being set by hazardous waste traders.

I submit that in our country all the municipal waste to energy plants have failed. 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 has not been examined as far as their adverse environmental health impact is concerned. This is unfolding under illegitimate acts of subordinate legislation.

I submit that 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 had 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 mutilating it further is underway.

I submit that 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.

I submit that 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. It indeed quite sad in the name of recycling, hazardous waste trade is being legalized.

I submit that the Hazardous Wastes (Management, Handling and Transboundary Movement) Rules, 2008 has completely altered definitions which is contrary to the international rules of the Basel Convention, which India is obliged to uphold.

I submit that it is illegal for both the ministries to pretend to implement the Basel Convention but utilise definitions that outwit the intent of the treaty.

I submit following examples of departures from the Basel Convention and international law:
• India has decided that transit states do not have to receive prior informed consent for all shipments of hazardous waste.
• 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 yet these are meant to be covered under Basel.
• India appears to allow dioxin imports for disposal but not for recycling
• Waste asbestos imports are banned unless they are contaminating other substances (e.g. old ships).
• Fails to implement the Ban Amendment forbidding all imports of hazardous waste from developed countries.
• Fails 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 re-consideration.

I submit that on May 7, 2012, Shri P. Viswanathan, Member of Parliament had asked the Union Minister of Shipping about the ban on entry of more than 25 years old ships which is not registered with Indian Registrar of Shipping (IRS) in Indian waters. The Hon’ble Minister replied, “There is no ban on the entry of vessels which are not classed with Indian Register of Shipping (IRS), provided the vessel is classed with any one of the twelve other member societies of International Association of Classification Societies (IACS)”. I wish to submit that of ships which are more than 25 years old are dead ships as they have reached their end of life. These hazardous wastes laden ships are being transferred to Indian waters in the name of ship dismantling at Gujarat’s Alang beach, a fragile coastal ecosystem. There is a need to initiate steps to ban entry of such ships especially in the coastal environment as has been done for Sachana ship breaking yards in Jamnagar, Gujarat

I submit that these subordinate legislations are 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 legislations are trade centric for hazardous waste.

I submit that its significance must be seen in the context of India-Japan Free Trade Agreement and India-EU Free Trade Agreements besides Economic Partnership Agreements with other developed countries who wish to externalize their pollution load following Lawrence Summers Principle of transferring harm to developing countries. The role of Special Economic Zones (SEZ) in facilitating it must be examined.

In such a backdrop, I wish to dispute the reply of the Union Environment Minister. If this reply of Union Minister of Environment and Forests is read with the *attached* 'Statement of Hazardous Goods Lying at Ports' given to the Parliament by Union Minister of Shipping, the true nature of the goings on stands exposed. How is it that waste oil which is officially admitted as waste oil referred to as hazardous good?

I submit that the Ministry 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 noteworthy that since 1989 till 2012, there have been several amendments to the Rules. Interestingly, the new 7 page Draft Hazardous Wastes (Management, Handling and Transboundary Movement) Fifth Amendment Rules, 2011 engineers these Rules and inserts a new definition of waste. It reads: "“(zea) “waste” means materials, that are not products or by-products, for which the generator has no further use in terms of his/her own purposes or for production, transformation or consumption, and of which he/she wants to dispose." Its Explanation1 reads: "Wastes may be generated during the extraction of raw materials, the processing of raw materials into intermediates and final products, the consumption of final products, and through other human activities. Residuals recycled or reused at the place of generation as a part of process are excluded." Its Explanation 2 reads: "By-product means a material that is not solely or separately produced by the production process but gets produced in the process and is used as such." I hold that the amendments are being done under undue influence of the global hazardous waste traders. The new Draft Rule is attached.

I submit that the subordinate legislation with regard to Hazardous Wastes (Management, Handling and Transboundary Movement) Rules, 2008 are contrary to the orders issued by the Supreme Court. The order dated 14th October, 2003 endorsed UN’s Basel Convention. The new notification is in contempt of the Court and violates the spirit of the Basel treaty by allowing traders to deal with hazardous wastes who are endangering public and ecological health. 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.

I wish to inform you that the Supreme Court Monitoring Committee (SCMC) on Hazardous Wastes members opines that "Truly, we take three steps forward and then five steps backward." The attached court’s order that constituted the SCMC saying “We constitute a Monitoring Committee comprising of the aforesaid members as also Dr.Claude Alvares, NGO and Dr.D.B. Boralkar. This Committee shall oversee that the direction of this Court are implemented timely. It would also oversee that the aspects to which the Ministry has agreed are implemented in letter and spirit and without any laxity or delay in the matter. It would be open to the Monitoring Committee to co-opt a representative of the State Government or State Pollution Control Boards or any other person or authority as the Committee may deem fit and proper. The Monitoring Committee shall file quarterly reports in this Court.” I submit that Union Ministry of Environment & Forests has ignored the recommendations of both the court appointed members.

I submit that 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?

I submit 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 is 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 compelled 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.

I submit that it has come to light from the Minister's statement 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. How can Customs authorities be expected to be sensitive when Ministries of Commerce and Industries, Shipping and Environment & Forests themselves are not sensitive.

I submit that 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.

I submit that 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 concerned ministries disclose the names of SEZs which are importing hazardous wastes.

In view of the above, your immediate intervention alone can facilitate creation of legitimate legislative competence to regulate management and trade in hazardous wastes.

I will be happy to share relevant documents and reference materials in this regard.

Thanking You

Yours faithfully
Gopal Krishna
Convener
ToxicsWatch Alliance (TWA)
New Delhi-16,
Phone: +91-11-26517814, Fax: +91-11-26517814
Mb- 9818089660
E-mail- krishna1715@gmail.com,
Web: toxicswatch.blogpsot.com

Cc
Shri Anand Sharma, Union Minister of Commerce & Industry
Shri G K Vasan, Union Minister of Shipping
Smt Jayanthi Natrajan, Union Minister of Environment & Forests
Shri Jyotiraditya Madhavrao Scindia, Union Minister of State, Ministry of Commerce & Industry
Chairman & Members, Parliamentary Standing Committee on Science, Technology, Environment & Forests
Smt. Vijay Laxmi Joshi, Additional Secretary, Union Ministry of Commerce & Industry
Ms Meera Mehrishi, Additional Secretary, HSMD, Union Minister of Environment & Forests
Shri Madhusudan Prasad, Additional Secretary, Union Ministry of Commerce & Industry
Shri Rajeev Kher, Additional Secretary, Union Ministry of Commerce & Industry
Ms Anita Agnihotri, Additional Secretary, Union Ministry of Commerce & Industry
Shri Mukesh Bhatnagar, Additional DGFT, Union Ministry of Commerce & Industry
Ms Aditi Das Rout, Director, Union Ministry of Commerce & Industry
Dr. Saroj, Director, HSMD, Union Minister of Environment & Forests
Dr. Manoranjan Hota, Director, HSMD, Union Minister of Environment & Forests
Dr Claude Alvares, Member, Supreme Court Monitoring Committee on Hazardous Wastes
Dr D B Boralkar, Member, Supreme Court Monitoring Committee on Hazardous Wastes
Shri Sanjay Parikh, Lawyer, Supreme Court