ToxicsWatch Alliance
April, 2016
Briefing
Paper
New
Hazardous Waste Rules against Clean India Mission
Makes India into a land of landfills
for foreign hazardous and other wastes
In
an exercise that reflects the gullibility of media, the newspapers and news
agencies reproduced the Press Release of Press Information Bureau (PIB),
Ministry of Environment and Forests, Government of India on New Hazardous Waste
Rules which was issued on a Sunday without its critical examination.
According
to Supreme Court of India, “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.”[1]
An
examination of the Draft Rules[2] which
formed the basis of the 2016 Rules released by the Union Minister of
Environment, Forest and Climate Change on 3rd April, 2016 shows that
its provisions are contrary to the objectives of 'Swachh Bharat Abhiyan'
(Clean India Mission) launched on 2nd October, 2014 by the Prime
Minister.
The
new rules titled "Hazardous and Other Wastes (Management
&Transboundary Movement) Rules, 2016". It is noteworthy that the final
text of Rules which has been announced through PIB has neither been put in
public domain nor has it been uploaded on the website of the Ministry.
ToxicsWatch Alliance (TWA) called the ministry to inquire about the text of the
Rules, the official informed that it will be uploaded after permission from the
senior official. It is apparent that the Rules have not been notified in the
Gazette of India as yet. It is strange as to why the Rules were released prior
to its notification in the Gazette of India.
In
order to comprehend issues at stake it is important to peruse the Draft Rules
which was shared for comments from the public. It defined “import”, which means
"bringing into India from a place outside India" and “importer” which
means "an occupier or any person who imports hazardous and other
waste".
As
per the Draft Rules, “transboundary movement” means any movement of hazardous
or other wastes form an area under the jurisdiction of one country to or
through an area under the jurisdiction of another country or to or through an
area not under the jurisdiction of any country, provided that at least two
countries are involved in the movement.
It
reveals that "transboundary movement" of hazardous has become part of
ministry's sound environmental management approach. This term was introduced in
2008 apparently under the influence of hazardous waste traders when the
pre-existing Hazardous Waste Rules were amended. This term has been lifted from
UN’s Basel Convention on Transboundary Movement of Hazardous Wastes and Their
Disposal. 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.” It is quite evident that the New
Rules are contrary to the objective of the UN Convention to which India is a
party. The 2016 Rules encourages disposal of waste farther away from the source
of generation. It promotes transboundary movement of hazardous wastes.
The
Convention was made part of its order by Supreme Court of India 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 Court took cognizance of violation of
Article 14 and 21 of the Constitution of India.
CHAPTER
III of the Draft Rules deals with "IMPORT AND EXPORT OF HAZARDOUS AND
OTHER WASTES"
Clause
11 of the Draft Rules provides that "The Ministry of Environment, Forest
and Climate Change shall be the nodal Ministry to deal with the transboundary
movement of the hazardous wastes in accordance with the provisions of these
rules."
Clause
12 (2) reads: "The import of hazardous and other wastes form any country
shall be permitted only for the recycling or recovery or reuse."
Such
permission for import of hazardous waste for "recycling or recovery or
reuse" is an attempt to define waste as non-waste. This is an act designed
to re-define end-of-life product as non-waste. It is akin to defining waste as
non-new good. It is an exercise in
linguistic corruption. This has apparently been done to pander to the interests
of international and national hazardous waste traders.
Clause
13 (1) reads: The import and export of
the hazardous and other wastes specified in Schedule III, shall be regulated in
accordance with the conditions laid down in the said Schedule.
This
is an admission that trade in hazardous waste will happen in a business as
usual manner.
Clause
13 (2) reads: " Subject to the provisions contained in sub-rule (1),-(i)
the import or export of the hazardous wastes specified in Part A of Schedule
III shall require Prior Informed Consent of the country form where it is
imported or exported to, and shall require the license from the Directorate
General of Foreign Trade and the prior written permission of the Central
Government. (ii) the import of other wastes specified in Part B of Schedule III
shall not require prior written permission of the Central Government and Prior
Informed Consent of the country from where it is imported; (iii) the import and
export of the hazardous wastes and other wastes not specified in Part A or Part
B, respectively of Schedule III but having the hazardous characteristic
outlined in Part C of the said Schedule shall require prior written permission
of the Central Government before it is imported or exported from India, as the
case may be."
It
is apparent from above provision that Directorate General of Foreign Trade
(DGFT), Ministry of Commerce has made Ministry of Environment, Forest and
Climate Change subservient to commercial interest. Thus, it has subordinated
the environmental health interest of the country.
Clause
13 (3) reads: "The import of hazardous and other wastes shall be limited
to one-third of the total annual processing capacity of the unit, as specified
in the authorisation."
This
is also an admission of support for import of hazardous and other wastes.
Clause
15 of the Draft Rules deals with Procedure for import of hazardous wastes and
other wastes. It reads: "Actual users for recycling or reprocessing may
import into the country other wastes listed in Part B of Schedule III (having
no asterisk/s ‘*’) if such user is authorised by the State Pollution control
Board, has the Directorate General of Foreign Trade license, wherever
applicable and the relevant documents have been verified by the Customs
authorities:
Provided
that the documentation requirement for specific kind of waste shall be
specified by the Ministry of Environment, Forest and climate Change from time
to time."
Ministry
of Commerce and Ministry of Environment, Forest and climate Change will have
believe that all the waste generated in the country has been treated and
disposed of in an environmentally sound manner. Having accomplished this
Herculean task, the central Government is offering its services and its robust
environmental management infrastructure to other countries to help them deal
with their hazardous waste and other wastes. It will have us believe that there
is abundance of laboratories, treatment facilities and land in the country
which can be used for testing samples of imported waste and treatment and
landfills. In order to demonstrate “Ease of Doing Business”, it is prepared
to and Make India into a land of landfills for foreign hazardous wastes as part
of its Make in India program.
Other
provisions of Clause 15 make it clear that the government is promoting trade in
hazardous waste in a business as usual manner.
The
relevant provisions reads: "The Port or Customs authorities shall, in case
of import of other wastes as specified in Part B of Schedule III, ensure that
shipment is also accompanied by Movement Document in Form 7 and pre shipment
inspection certificate issued by the inspection agency certified by the
exporting country or the inspection and certification agency approved by the
Directorate General of Foreign Trade."
It
reads: "The importer of the hazardous waste and other wastes shall
maintain records of the hazardous and other waste imported by him in Form 8 and
the record so maintained shall be available for inspection."
It
also provides "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 and other waste ten
days in advance."
These
provisions under Chapter III and the role of Directorate General of Foreign
Trade (DGFT), Ministry of Commerce reveals that the Rules continue to promote
trade in hazardous wastes. These Rules allow Indian to remain a dumping ground
of hazardous wastes.
The
Draft Rules stated that it will not be applicable to "wastes arising out
of the operation form ships beyond five kilometers of the relevant baseline as
covered under the provisions of the Merchant Shipping Act, 1958 (44 of 1958)
and the rules made thereunder." The Rules should have dealt with hazardous
substances laden end-of-life ships as part of hazardous wastes which is covered
under UN’s Basel Convention on Transboundary Movement of Hazardous Wastes and
Their Disposal[3]
and accepted by Supreme Court of India as part of Right to Life.[4] It is
noteworthy that Basel Convention is related to the control of Trans-boundary
movements of hazardous waste and their disposal. The ships destined for
ship-breaking operations are "hazardous wastes" under the Convention.
While
the prohibition on import of Waste edible fats and oil of animals, or vegetable
origin; Household waste; Critical Care Medical equipment; Tyres for direct
re-use purpose; Solid Plastic wastes including Pet bottles; Waste electrical
and electronic assemblies scrap and Other chemical wastes especially in solvent
form is praiseworthy but the continuance of patronage to international and
national hazardous waste traders is contrary to supreme national interest.
In
September 2007, the Ministry of Environment proposed an amendment to the
Hazardous Wastes (Management & Handling) Rules; after amendment it would
read "Hazardous Materials (Management, Handling and Transboundary
Movement) Rules[5].
The proposed rules had 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 was not banned.
Such
motivated attempt at redefinition attracted widespread criticism from
environment, public health groups and even the Confederation of Indian Industry
(CII). It was a gross act done at the behest of hazardous waste traders. Two
members of Supreme Court's own monitoring committee on hazardous wastes also
raised objections. In a study, ASSOCHAM recommended ban on trade in hazardous
wastes.
The
question which merits consideration in the light of the 2016 Rules is: Are
hazardous wastes and hazardous materials and recyclable materials synonymous?
The
2007 draft Rules had redefined "hazardous waste" as "hazardous
material". It introduced a completely new system of classifying items,
contrary to the definition provided by the Supreme Court and UN's Basel
Convention on the Control of Transboundary Movements of Hazardous Waste, to
which India is a party. The 2016 Rules follows the flawed path of the draft
2007 Rules.
The
Basel Convention gives a very clear and simple definition of waste: wastes are
materials which are disposed of, or intended to be disposed of, or required to
be disposed of, to the environment”. The Supreme Court order of October 2003 had already
observed that although Basel Convention has banned import of 76 items, India
had only banned 29 items under the Hazardous Wastes (Management and Handling)
Rules, 1989. It had directed the Union of India to incorporate the Basel list
in the existing Rules and had actively argued for expanding the list of
prohibited items for import.
Instead,
the amendment proposed by the Ministry leaves room for import of hazardous
waste. If it gets notified in the Gazette of India, it will imply that any
hazardous waste can be freely imported if it simply states that it meant for
recycling, reuse and recovery.
The
Draft Rules made public for creation 2016 Rules defines “disposal” as “any
operation which does not lead to recycling, recovery or reuse and includes
physico chemical, biological treatment, incineration and disposal in secured
landfill.” It is noteworthy that it will have us believe that “recycling,
recovery or reuse” is disposal.
A
careful perusal of the Rules shows that the Rules are being under the
tremendous influence of Ministry of Commerce. The design of the hazardous waste
management rules is part of the process of re-engineering provisions of the
Environment Protection Act and Rules therein in keeping with the
recommendations made by the Govindarajan Committee on Investment Reforms and
are admittedly “in line with this Government’s priority for Ease of Doing
Business and Make in India”. In such a scenario, environmental health concerns
have taken a back seat.
It
must be recalled that the Ministry of Commerce abandoned its decision to have a
registration scheme for overseas suppliers of scrap as applicable in China. As
per the EXIM Policy 2002-2007, import of second hand goods is restricted and
can be imported only with the permission of the Directorate General of Foreign
Trade (DGFT). The DGFT had announced a plan in March 2006 to introduce a
registration system covering imports of unshredded ferrous and non-ferrous
scrap. This was proposed in the wake of explosions and loss of life linked to
the presence of munitions in consignments arriving at Indian ports. Further,
DGFT had announced a plan similar to that implemented in China which would have
required applicants to demonstrate their financial and business standing.
But
with the proposed amendment from Ministry of Environment, hazardous waste gets
classified as recyclable material, and it would fall in the category of second
hand materials. The DGFT will be able to allow even hazardous waste since as
per the new notification a waste would be deemed as non-waste. In this way
toxic waste will reincarnate itself as a reusable or recyclable or recoverable
product.
When
the DGFT had proposed its registration scheme covering imports of scrap, the US
Institute of Scrap Recycling Industries and the Indian scrap steel industry had
objected. They argued that exporters should make sure we don’t repeat the
mistakes of the past. We should self-regulate to ensure no explosive materials
are shipped.”
The
DGFT appears to have caved in to their pressure and instead suggested
self-regulation to the industry, according to information received from the
Bureau of International Recycling (BIR) meeting in Warsaw, Poland during 22-23
October 2007. BIR is the international trade federation representing the
world’s recycling industry, covering in particular ferrous and non-ferrous
metals etc.
The
position of the Ministry of Commerce (the DGFT) is, in effect, in complete
contrast to the revised EU Waste Shipment Regulations, to which all EU member
nations need to comply. The new EU rules now require an tracking document to
accompany shipments of non-hazardous materials designated as waste, including
recyclables. But the scrap industry feels that the complexity of information
required by the new EU rules was totally illogical, complaining that it did not
offer clear environment benefit.
In
effect, the proposed rules are a formal announcement of globalisation of the
toxic chemical crisis. Exporters in rich countries have been consistently
seeking to export toxic scrap to India and likewise, there has been a similar
trend amongst businesses in the India to import such waste.
Self-regulation
is no alternative to corporate accountability. The solutions are waste
management through clean production and reduction in the use of toxics
chemicals through life cycle assessment, precautionary principle, eco-design,
extended producers' responsibility and the polluter-pays principle. All of this
is sought to be undermined by the proposed rules. This is being done despite
the fact that National Environment Policy acknowledges how "Environmental
factors are estimated as being responsible in some cases for nearly 20 percent
of the burden of disease in India".[6] The
New Hazardous Waste Rules does not factor in such concerns.
National
Environment Policy refers to a range of goals that seem well-intended. They
include strategies for cleanup of toxic and hazardous waste dump legacies,
developing a national inventory of such dumps, an online monitoring system for
movement of hazardous wastes and taking legal measures for addressing
emergencies arising out of transportation, handling, and disposal of hazardous
wastes.
In
drafting the 2016 Rules, all of this has been ignored. It is germane to note
that NEP mentions, "the Cabinet or a nominated Committee of the Cabinet
may be requested to review the implementation of the National Environment
Policy". In line with that, the Ministry's New Hazardous Waste Rules
should be withheld even at this late stage. It must be reviewed and revised before
it is notified in the Gazette of India. Central Government should recollect
that being a signatory to Basel Convention which it signed on 15th March,
1990 and ratified on 24th June, 1992, it is under the obligation to
act as the letter and spirit of the Convention and the order of the Supreme
Court of India. The order was reiterated on 30th July, 2012.
The
Hazardous Waste Rules, 2016 should be revised to reflect Government of India’s
intention to ratify the Ban Amendment to Basel Convention on the Control of
Transboundary Movements of Hazardous Wastes and Their Disposal. India missed
the opportunity of ratifying it before the Twelfth Conference of the Parties
held in Geneva during 4-15 May, 2015. The main principles of this UN treaty
are: transboundary movements of hazardous wastes should be reduced to a minimum
consistent with their environmentally sound management; hazardous wastes should
be treated and disposed of as close as possible to their source of generation;
and hazardous waste generation should be reduced and minimized at source.
Government of India’s current position is contrary to these principles and
stands in manifest contrast with its position in 1992.
By
decision III/1, of September 22, 1995, at COP-3, the Third meeting of the
Conference of the Contracting Parties to the above Convention that took place
in Geneva in September 1995, adopted an Amendment to the Convention. This bans
the export of hazardous wastes for final disposal and recycling from rich
countries to poorer countries. This amendment was to enter into force following
ratification by 62 parties as per Article 17 (5) of the Convention.
This
Article reads as follows: “Instruments of ratification, approval, formal
confirmation or acceptance of amendments shall be deposited with the
Depositary. Amendments adopted in accordance with paragraphs 3 or 4 [of article
17 of the Convention] shall enter into force between Parties having accepted
them on the ninetieth day after the receipt by the Depositary of their
instrument of ratification, approval, formal confirmation or acceptance by at
least three-fourths of the Parties who accepted them or by at least two thirds
of the Parties to the protocol concerned who accepted them, except as may
otherwise be provided in such protocol. The amendments shall enter into force
for any other Party on the ninetieth day after that Party deposits its
instrument of ratification, approval, formal confirmation or acceptance of the
amendments.”
The
Ban Amendment has not entered into force despite the fact that 70 parties have
ratified it because Basel Convention Secretariat appears to have surrendered
under the influence of powerful hazardous waste traders. The parent treaty, the
Basel Convention has been ratified by 183 countries. Government should pay heed
to the fact that the European Union has implemented the Basel Ban in its Waste
Shipment Regulation. It has made it legally binding on all EU member states.
Norway and Switzerland too have implemented the Basel Ban in their legislation.
Under
the influence of countries like USA, Germany, United Kingdom, Australia,
Canada, South Korea and Japan in general and U.S. Chamber of Commerce, the
world’s largest business federation representing the interests of more than 3
million businesses, International Chamber of Commerce, US Institute of Scrap
Recycling Industries and Bureau of International Recycling (BIR), the
international trade federation representing the world’s recycling industry,
India’s Hazardous waste Rules have faced continued dilution. These countries
and interests never wished Convention and compliant Rules to come into
force.
As part of Clean India
Mission, Central Government should to regain its original stance of being a
strong opponent of the international waste trade and an ardent supporter ban on
toxic waste exports from the world’s richest countries to less industrialized
ones.
Government of India should
recollect its position at the First Conference of Parties to the Basel
Convention in Piriapolis, Uruguay, from 3-4 December, 1992. 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.”
Government of India was
firm even at the Second Basel Convention Conference of Parties, in March 1994
and advocated ban on all hazardous waste exports from the world’s most industrialized countries, the members of the
Organization of Economic Cooperation and Development (OECD) to
non-industrialized countries like India.
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.
Environment Ministry
must disassociate itself from the regressive statement of 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.” This was a direct assault on intent of Basel Convention. It
was the first nail in the coffin. 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. “The
last damage was done at the Bali Conference on the Basel Convention when the
then Minister of State for Environment Namo Narain Meena said that we saw
hazardous waste as recyclable material under the influence of Commerce
Ministry, which has adopted the policy of free trade in hazardous waste
unmindful its environmental and human cost.
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. Wikileaks has revealed how the US Government ensured that the same
Kamal Nath was not made the Commerce Minister again for his position in WTO negotiations
in a different context.
Government should not
delay its ratification of Ban Amendment anymore. The notification of New
Hazardous Waste Rules provides a chance to recover the lost ground and re-adopt
its 1992 position and ask the rich countries to “keep your own waste” for
global common good.
For
Details: Gopal
Krishna, ToxicsWatch Alliance (TWA), Mb: 08227816731, 09818089660,
E-mail-1715krishna@gmail.com, Web: www.toxicswatch.org
[2] Hazardous and Other Wastes
(Management and Transboundary Movement) Rules, 2015
[5] http://www.envfor.nic.in/legis/hsm/HAZMAT_Draft.pdf
P.S: Subsequent to the release of TWA's Briefing Paper on 5th April, 2016 and following TWA's phone call and letter to the ministry, the URL of link to Hazardous Waste Management Rules, 2016 was shared on 7th April, 2016. The URL is available here:
TWA's briefing paper remains relevant because none of the concerns raised have been addressed in the New Rules.
let the Indian know and conscious of this danger
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