Hazardous Waste Trade Scam and subordinate legislation for hazardous waste management sans legislative mandate

To

Shri P. Karunakaran,
Chairman
Parliamentary Standing Committee (PSC) on Subordinate Legislation
Parliament of India
New Delhi

Through Shri Sukhi Chand Chaudhary, Director, PSC on Subordinate Legislation

Subject- Hazardous Waste Trade Scam and subordinate legislation for hazardous waste management sans legislative mandate

Sir,

This is with reference my letter to you dated March 25, 2012, the recent Supreme Court order in Writ Petition (Civil) No 657 of 1995 and the ongoing compromise with the sovereignty of the country by the ministries of Commerce, Finance, Steel, Environment and Shipping Ministry who appear to have become subservient to global hazardous waste traders and ship owners.

I submit that import of wastes is happening by indulging in linguistic corruption in the Hazardous Waste Management Rules. It is least acknowledged but remains one of the biggest ongoing scams of the country and source of black money. It also poses threat to national security.

I submit that this is happening unmindful of the National Environment Policy that acknowledges that “Environmental factors are estimated as being responsible in some cases for nearly 20 percent of the burden of disease in India".

I submit that hazardous wastes laden end-of-life ships entering/ or have entered in the Indian territorial waters without prior informed consent and without prior decontamination keeping in view the environmental principles despite Supreme Court's order. Some 6000 such dead ships reached Alang beach since 1982 and have been dismantled unmindful of the contamination fragile coastal environment and destruction of fishermen’s livelihood. Most of these obsolete ships enter Indian waters on fake documents.

I submit that the Supreme Court has recently allowed the US toxic ship Exxon Valdez, which had caused one of the worst US oil spills in Alaska over two decades ago, to be dismantled in the country but required the owner to pay for disposal of any toxic materials found on the ship. The ship entered Indian waters in May this year to be broken down for valuable parts. This caused huge protests and even the apex court was moved to stop the ship from being dismantled in India without prior decontamination of hazardous wastes in the country of export. This happened because Environment Ministry, Gujarat Maritime Board and Gujarat Pollution Control Board misled the Court. This merits a legislative probe.

I submit that concluding the 15 page judgment of July 30, 2012 in the matter of end of life US ship Exxon Valdez, Justice Altamas Kabir headed bench of Supreme Court has directed that "...in all future cases of a similar nature, the concerned authorities shall strictly comply with the norms laid down in the Basel Convention or any other subsequent provisions that may be adopted by the Central Government in aid of a clean and pollution free maritime environment, before permitting entry of any vessel suspected to be carrying toxic and hazardous material into Indian territorial waters.

I submit that unmindful of this order agencies in the Gujarat State in connivance with some central environment ministry officials appear to be violating the Court's order with impunity as is apparent from the attached news report "MoEF clarifies SC ruling, calms rattled Alang shipbreakers" (Indian Express, August 2012). This merits inquiry.

I submit that in 2011-12, the country reclaimed its lost position as the world’s largest ship-breaking nation with its yards in Alang and elsewhere demolishing no less than 415 ships. Most ship-breaking companies in India, however, do not follow sufficient precautions, exposing workers and the environment to toxic materials. They have turned the beaches of Alang and Bhavnagar in Gujarat into poisonous holes. Sadly, the Government has done precious little to prevent the transformation of the country’s beaches into landfills for the hazardous wastes of the developed world.

I submit that from different developed countries dead ships full of hazardous substances like PCBs (polychlorinated biphenyls), radioactive materials, asbestos and Ballast Water arrive at the Alang beach, which has become the largest ship recycling yard in the world. There are 173 plots to carry out the ship-breaking activities on the beach under the supervision of the Gujarat Maritime Board. Since 1982 till April 2008, 4,551 ships arrived in Alang for dismantling. The first end-of-life ship MV Kota Tenjong was stationed at Alang on February 13, 1983. After the September 2007 Supreme Court order, more than 1,200 end-of-life hazardous ships entered Indian waters for the purpose of disposal. A total of 5,924 end-of-life ships were permitted between 1982 and 2012.

I submit that the Union Steel Ministry was given the task to prepare the Code on Regulations for Safe and Environmentally Sound Ship Recycling. It has, however, failed to do so even after five years of the court order, unmindful of the death toll of migrant workers from Bihar, Uttar Pradesh, Jharkhand and Odisha in Alang. In 2011 alone, 28 workers got killed. The inquiries in such deaths are never made public.

I submit that on the recommendation of Prof MGK Menon-headed High Power Committee on Hazardous Wastes, appointed by the Supreme Court, a landfill was created for hazardous wastes generated at the Alang beach. Today, this landfill is filled up. But there is no data available as to the quantity of hazardous wastes which has been dumped. How much PCBs, radioactive and other hazardous materials have come to the country is not known. Even the extent of contamination of the Alang beach is not known. It is not understood how the ship-breaking activities continue till date when there is no landfill facility available.

I submit that hazardous ships entering Indian territorial waters without prior consent and without prior decontamination must be sent back. Such ships must take the Defence Ministry’s clearance before entering Indian waters. In fact, given the sensitivity involved, the regulation of ship-breaking activity should be handed over to the Navy. Also, there is a need to investigate the adverse environmental and occupational health impacts of dismantling dead ships on fragile coastal environment of the Alang beach.

I submit that there’s also a security angle associated with the industry. According to intelligence reports, Pakistan-based underworld has a major stake in the ship-breaking industry in Gujarat. A Standing Monitoring Committee on Ship-breaking Yards at Alang in 2011 notes that the customs officials and the Gujarat Maritime Board are unable to verify whether the documents provided to them when the ship beaches at Alang are forged or not. Over 100 ship-breaking companies are active in Alang. Early this year, a team of 200 Income Tax officials cracked down on three of the biggest Alang-based companies.

If the underworld is involved in Alang, this is obviously a great threat to the the country’s security. India needs to wake up to both environmental and terror threats emanating from the ship-breaking industry.

Hazardous Waste Situation

I wish to draw your attention towards Supreme Court’s judgment delivered on July 6, 2012 directing the central government to ban import of all hazardous/toxic wastes identified and declared to be so under the UN’s Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal to which India is a party.

The para 35 of the judgment reads:“The Central Government is also directed to ban import of all hazardous/toxic wastes which had been identified and declared to be so under the BASEL Convention and its different protocols. The Central Government is also directed to bring the Hazardous Wastes (Management & Handling) Rules, 1989, in line with the BASEL Convention and Articles 21, 47 and 48A of the Constitution.” This judgment is consistent with multilateral decisions made in October 2011, when 178 parties to the Basel Convention met in Cartagena, Colombia to not only re-endorse the Basel Ban Amendment forbidding the export of hazardous wastes from rich to poorer countries, but also resolve that the Basel Convention must continue to prohibit the dumping of end-of-life vessels on developing countries.

I submit that as per the order Union Ministry of Finance will have to issue notification under Section 11 of the Customs Act, 1962 to prohibit the import of hazardous wastes.

I submit that Mrs Jayanthi Natarajan, Union Minister of Environment and Forests informed the Parliament, "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," of Union Commerce Ministry in the Lok Sabha on May 21, 2012 in response to a question. Her reply that defines hazardous waste as recyclable material appears to be an exercise in sophistry.

If this reply of Union Minister of Environment and Forests is read with the '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’?

As per the official National Inventory of Hazardous Waste Generating Industries, total waste handling capacities of Treatment Storage Disposal Facilities (TSDFs) is about 1.5 million tonnes per annum (MTA) and there is a deficit of about 1.2 MTA for land fillable wastes and about 0.9 MTA for incinerable wastes. When the country does not have the even the required capacity of TSDF, how can import of hazardous waste be "permitted" in the name of "recycling or recovery or reuse" and still have the Parliament and the countrymen believe that "Import of such (hazardous) wastes for disposal is not permitted."

Union Minister of Environment and Forests did not provide complete details to the Parliament in her reply when she said that "during the last three years, has given permission for import of Lead Scrap, Plastic waste generated from industrial process, non-activated glass cullets, etc. by actual users for recycling in an environmentally sound recycling facilities."

I submit that 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 44%, incinerable hazardous waste is about 7 % and recyclable hazardous waste is about 49 % as per government’s own report. 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?

Some "141 hazardous waste dumpsites that have been primarily identified in 14 States/UTs out of which 88 critically polluted locations are currently identified" are unable to deal with the domestically generated waste in a scientific and environmentally sound manner and are just dumped. In such a situation, how can Environment Minister inform the Parliament that India has the capacity to deal with the imported hazardous waste be deemed convincing.

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.

I submit that the Ministry appears to be 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 has a duty to “Grant License for import of hazardous wastes”.

At the First Conference of Parties to the Basel Convention in Piriapolis, Uruguay, from 3-4 December, 1992, Shri A. Bhattacharja, Head of the Indian delegation who pleaded with industrialized countries to stop exporting hazardous waste. "You industrial countries have been asking us to do many things for the global good -- to stop cutting down our forests, to stop using your CFCs. Now we are asking you to do something for the global good: keep your own waste." It was only in 1995 that Government of India revised its position at the Third Basel Conference of Parties in September 1995 under the harmful influence of representatives of the US and Australia. This led to Indian government announcing that it was reconsidering its position on the Basel Ban. It is high time government disassociated itself from the regressive statement of Shri Kamal Nath, the then Union Minister of Environment & Forests who averred, "We are against environmentally unfriendly recycling. We are not against the movement of waste, provided the recipient has adequate equipment, facility and the proper process to deal with it." Consequently, India did not ratify the ‘Ban Amendment' to the Basel Convention, which could have stopped the import of hazardous waste and stopped India from becoming a leading dumping ground. at the Bali Conference on the Basel Convention in June 2008 the then Minister of State for Environment Shri Namo Narain Meena said that we saw hazardous waste as recyclable material. It is quite clear that Commerce Ministry has adopted the policy of free trade in hazardous waste unmindful its environmental and human cost.

I submit that this policy appears to be guided by U.S. Chamber of Commerce, the world’s largest business federation representing the interests of more than 3 million businesses and International Chamber of Commerce (ICC), represents companies from 130 countries and a member of UN’s Global Compact.

I submit that ICC has been instrumental in outwitting the UN ban on hazardous waste trade through bilateral Free Trade Agreements between countries. US Government and ICC have 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 on hazardous waste to be stopped by the World Trade Organization (WTO) because it is trade disruptive. This undermines the customary environmental law principles.

I submit that Government of India has 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 in an Internal Memo by Lawrence 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.

I submit that after the hullabaloo over missile explosions in the Bhushan Steel plant in Sahibabad-Ghaziabad area that killed several workers in 2006, DGFT had proposed its registration scheme covering imports of scrap but it gave up due to objections from the US Institute of Scrap Recycling Industries and the Indian scrap steel industry. As part of the same consignment some 17,000 explosives weighing 200 quintals were detonated by the Indian Army's bomb disposal unit in Ludhiana, Punjab during November 2010- February 2011. It was a legacy of Shri A Raja’s tenure as Environment Minister.

I submit that 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. Now EU also is in the process of amending its regulation.

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:“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." These amendments are being done under undue influence of the global hazardous waste traders.

I submit that the subordinate legislation with regard to Hazardous Wastes (Management, Handling and Transboundary Movement) Rules is contrary to the orders issued by the Supreme Court. 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.

It is clear from the existing Hazardous Waste Rules (including the amendments till 30 March, 2010) that it promotes trade in hazardous waste. In its report the SCMC on Hazardous Wastes has recommended a Central Bureau of Investigation (CBI) inquiry into the unpardonable breach of environmental security and contempt of court by the non- traceable illegal waste oil importers and concerned officials.

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 termed it as a gross act done at the behest of hazardous waste traders. Even the Confederation of Indian Industry has expressed its concerns in November 2007. The Supreme Court's own Monitoring Committee on Hazardous Wastes has 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.

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.

It has come to light that acknowledging such a situation, the then Union Environment and Forest Minister had written a letter to Union Commerce Minister Shri Anand Sharma 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.

I submit that the names of SEZs which are importing hazardous wastes have not been disclosed. Hazardous products including war materials, dead batteries, arms waste like empty shells and cartridges, toxic substances, waste oil and carcinogens like asbestos are making their way to the 7,600-km-long Indian coastline, posing a serious threat to hundreds of fragile ecosystems along the shores.

I submit that government should come out with a White Paper on Domestically generated hazardous waste and Import and Export of Hazardous Waste explaining which of them are being used, reused or processed for recovery. Commerce and Environment Ministry should reveal how of "Lead Scrap, Plastic waste generated from industrial process, non-activated glass cullets, etc" that is generated within the country is reused. Why should Union Environment Ministry choose to simply act subservient to Union Commerce Ministry which is under the influence of hazardous waste traders of developed countries?

I submit 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 allows hazardous waste trade by reincarnating it as a reusable or recyclable material is case of erosion of sovereignty.

In view of the above, your immediate intervention is required to ensure that legitimate subordinate legislative is enacted in keeping with the Supreme Court order and Basel Convention to regulate management and to stop the scam in the trade hazardous wastes including disposal of end-of-life ships.

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
Mb- 9818089660
E-mail- krishna1715@gmail.com,
Web: toxicswatch.blogpsot.com

Cc
Shri P. Karunakaran, Chairman, PSC on Subordinate Legislation
Shri Sitaram Yechury, Chairman, PSC on Transport, Culture & Tourism
Hon’ble Members of PSC on Subordinate Legislation
Shri Ghanshyam Anuragi,
Shri Praveen Singh Aron,
Shri Kalyan Banerjee
Shri E. T. Mohammed Basheer
Shri Ramen Deka
Dr. Mahesh Joshi
Shri Virender Kashyap
Shri Jitender Singh Malik
Dr. Thokchom Meinya
Smt. Mausam Noor
Shri Gajendra Singh Rajukhedi
Dr. Bhola Singh
Shri Vijay Bahadu Singh
Shri A.K.S Vijayan
Prof. M G K Menon, former Chairman, High Powered Committee on Hazardous Wastes
Hon’ble Members of Supreme Court Monitoring Committee on Hazardous Wastes
Dr Claude Alvares
Dr D B Boralkar
Shri Sanjay Parikh, Lawyer, Supreme Court