IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION NO. 657 OF 1995
Research Foundation for Science Technology National Resource Policy
Versus
Union of India & Others Respondent (s)
(With SLP (C) No. 16175/1997 & C.A. No. 7660/1997)
Reported .
2003 (8) SCALE 258.
ORDER
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 transboundry 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.
4. From time to time various affidavits have been filed in this matter by
Ministry of Environment and Forests (for short MoEF) and Pollution Control
Boards. The aspects that have been considered and reflected in various orders
that have been passed and are further required to be considered and appropriate
directions issued relate to the provisions of Hazardous Waste (Management and
Handling) Rules, 1989 (for short H.W. Rules), the implementation of these Rules
and other connected issues relating to hazardous waste. These Rules have been
amended during pendency of this petition, the latest amendment being of 23rd
May, 2003.
5. Considering the magnitude of the problem and the extent of hazardous
waste generated, this Court issued notices to all the State Governments, Central
Pollution Control Board and State Pollution Control Boards so as to identify the
problem, identify the extent of such waste, availability of the disposal sites
and various other aspects relevant to minimising the generation, its proper
handling and disposal with a view to safeguard the environment degradation.
6. By order dated 5th May, 1997, this Court, inter alia,
directed that no authorisation/permission would be given by any authority for
the import of hazardous waste items which have already been banned by the
Central Government or by any order made by any Court or any other authority and
no import would be made or permitted by any authority or any person, of any
hazardous waste which is already banned under the Basel Convention or to be
banned hereafter with effect from the dates specified therein. In view of the
magnitude of the problem and its impact, the State Governments were directed to
show cause why an order be not made directing closure of units utilising the
hazardous waste where provision is not already made for requisite safe disposal
sites. It was further ordered that cause be shown as to why immediate order be
not made for closure of all unauthorised hazardous waste handling units.
7. We have extensively perused the record with the assistance of learned
counsel. The material on record demonstrates that proper attention was not paid
by the concerned authorities in implementing H.W. Rules, 1989. These Rules were
amended with effect from 6th June, 2000 and further amended on 23rd May, 2003.
The problem is not as much of absence of the Rules as it is of implementation.
If the Rules are amended, but not implemented the same remain on paper. If H.W.
rules as in 1989 had been properly implemented, the problem would not have been
as grave as faced now. Likewise, if the Rules as amended in the year 2000 were
implemented, the problem would not have been as grave as it is presently.
8. Our attention has been drawn by Mr. Parikh, learned counsel for the
petitioner, to various orders that have been passed by this Court commencing
from 19th October, 1995 till date, to various affidavits that have been filed on
behalf of the MOEF, Central Pollution Control Board (CPCB) and others which
substantially amount to an admission of the authorities about lack of various
basics so as to handle the issue. One of the such elementary aspect is lack of
correct information as to the extent of the hazardous wastes. At one stage it
was represented that the total quantity of hazardous wastes generated in the
Country was in the region of 2000 tonnes per day which worked out to be 0.7
million tonnes per year. At a later stage the figure rose to more than 4.4
million tonnes per year. This is just one illustration.
9. In the order dated 4th August, 1997 it was observed that all State
Governments have not taken steps required under the applicable laws as well as
earlier directions of the Court and have not placed before the Court all
material facts inspite of considerable time having been given. It has been
further observed that all the authorities do not appear to appreciate the
gravity of situation and need for prompt measures being taken to prevent serious
adverse consequences. Even Central Government was not given full information by
all the State Governments about the compliance of the directions of this Court.
Under these circumstances, it was observed that an appropriate Committee
deserves to be constituted to ensure that needful is done to arrest further
growth of the problem. Learned counsel for the petitioner and the learned
Additional Solicitor General were requested to furnish the names of suitable
persons including experts who could be appointed to such Committee. In this
background, by order dated 13th October, 1997 a High Powered Committee (HPC)
with Prof. MGK. Menon as its Chairman was constituted to examine all matters in
depth relating to hazardous waste and to give a report and recommendations at an
early date. The fourteen Terms of Reference on which the High Powered Committee
was required to give its report and recommendations are :
“(1) Whether and to what extent the hazardous wastes listed in Basel
Convention have been banned by the Govt. and to examine which other hazardous
wastes, other than listed in Basel Convention and Hazardous Wastes (Management
and Handling) Rules, 1989, require banning.
(2) To verify the present status of the units handling hazardous wastes
imported for recycling or generating/recycling indigenous hazardous wastes on
the basis of information provided by respective States/UTs and determine the
status of implementation of Hazardous Wastes (Management and Handling) Rules,
1989 by various States/UTs and in the light of directions issued by the Hon’ble
Supreme Court.
(3) What safeguards have been put in place to ensure that banned
toxic/hazardous wastes are not allowed to be imported.
(4) What are the changes required in the existing laws to regulate the
functioning of units handling hazardous wastes and for protecting the people
(including workers in the factory) from environmental hazards.
(5) To assess the adequacy of the existing facilities for disposal of
hazardous wastes in an environmentally sound manner and to make recommendations
about the most suitable manner for disposal of hazardous wastes.
(6) What is further required to be done to effectively prohibit, monitor and
regulate the functioning of units handling hazardous wastes keeping in view the
existing body of laws.
(7) To make recommendations as to what should be the prerequisites for
issuance of authorisation/permission under Rule 5 and Rule 11 of the Hazardous
Wastes (Management and Handling) Rules, 1989.
(8) To identify the criteria for designation of areas for locating units
handling hazardous wastes and waste disposal sites.
(9) To determine as to whether the authorisation/permissions given by the
State Boards for handling hazardous wastes are in accordance with Rule 5(4) and
Rule 11 of hazardous waste Rules, 1989 and whether the decision of the State
Pollution Control Boards is based on any prescribed procedure of checklist.
(10) To recommend a mechanism for publication of inventory at regular
intervals giving area-wise information about the level and nature of hazardous
wastes.
(11) What should be the framework for reducing risks to environment and
public health by stronger regulation and by promoting production methods and
products which are ecologically friendly and thus reduce the production of
toxics?
(12) To consider any other related area as the Committee may deem fit.
(13) To examine the quantum and nature of hazardous waste stock lying at the
docks/ports/ICDs and recommend a mechanism for its safe disposal or re-export to
the original exporters.
(14) Decontamination of ships before they are exported to India for
breaking.”
10. The High Powered Committee comprised of experts from different
disciplines and fields as would be apparent from the following :-
1. Dr. Claude Alvares (scientific aspects of environmental damage and their
impacts on society, legal aspects, Basel Convention, accountability to the
public),
2. Dr. D.B. Boralkar (chemistry, pollution control, Basel Convention,
experience at CPCB and SPCB in enforcement of regulations);
3. Dr. Mrs. Indrani Chandrasekharan (chemistry, formulation of legislation,
Basel Convention, experience at MOEF);
4. Dr. V.K. Iya (chemistry and biomedical aspects, public involvement);
5. Shri Prem Chand (non-ferrous metals and industry);
6. Dr. K.R. Ranganathan (environmental studies, pollution control and
functioning of CPCB, accountability to the public);
7. Dr. A.K. Saxena (environmental engineering, experience at National
Productivity Council on hazardous waste management projects, particularly
landfill technology);
8. Dr. P.K. Seth (aspects of health and hazardous wastes; industrial
toxicology);
9. Dr. Sudhir Singhal (issues relating to oil);
10. Shri Paritosh Tyagi (pollution control, institutional mechanisms and
experience as a former Chairman, CPCB);
11. Dr. R.R. Khan, Director, Ministry of Environment and Forests &
Member-Secretary;
12. Dr. T.S.R. Prasad Rao, Director, Indian Institute of Petroleum, Dehra
Dun (represented by Dr. Himmat Singh, Deputy Director).
11. With the assistance of Mr. Sanjay Parikh, learned counsel appearing for
the petitioner, Mr. AND. Rao, learned counsel appearing for the Central
Government and Mr. Vijay Panjwani learned counsel appearing for Central
Pollution Control Board, we have gone through the extensive report submitted by
High Powered Committee. At the outset, we wish to place on record our gratitude
for the efforts made and dedication shown by HPC in preparation of the report
and recommendations made therein after indepth study of numerous facets of the
problem.
12. The Report has highlighted the areas which result in generation of the
hazardous wastes and the limited area on which the High Powered Committee
focussed its attention, namely, industrial operations (solid, liquid, gaseous
waste) including industries recycling hazardous waste and others as detailed in
paragraph 1.3 relating to scope of work. Out of 14 Terms of Reference, on
T.O.A.No. 13 the High Powered Committee submitted its Report on 20th April,
1998, on consideration whereof, directions were issued in terms of the order
dated 10th December, 1999.
13. The ratification of Basel Convention by India shows the commitment of
our country to solve the problem on the principles and basis stated in the said
document. The decision stated to have been taken by 65 conference parties by
consensus to ban all exports of hazardous wastes from Organisation for Economic
Co-operation and Development (OECD) to non-OECD countries immediately for
disposal and in the beginning of the year 1998 for recycling are, therefore,
required to be kept in view while considering the number of items to be banned.
It also deserved to be noticed that having regard to the broad outlook in
framing the Terms of Reference including therein not only the aspects of
imported hazardous wastes but also management of indigenous hazardous wastes,
the HPC has rightly not confined itself just to the crisis situation that has
arisen from continuous illegal import and dumping of hazardous wastes, but had
also gone into the systemic weaknesses that had developed as a result whereof
there was slow progress in handling the problem. HPC has observed that the
problems raised by indigenous processing of toxic substances such as lead and
waste oil and by industrial processes that generated these as also by methods of
disposal like incinerators and landfills to be far more serious and of far
greater magnitude than those associated with the import of such waste. In this
view various aspects of indigenous generation and handling of hazardous wastes
have been examined in depth. Having regard to this approach, we agree with
conclusion drawn by HPC that MOEF made no concerted or consistent efforts which
necessarily have to be of a promotional, educational and co-ordinating nature –
to show the implementation of H.W. Rules, 1989. We hope that on the matter in
issue, henceforth, there would not be any lack of serious and concerned action
on the part of MOEF.
14. On 23rd September, 2003, Mr. Parikh filed a brief summary of directions
required to be issued on the basis of the recommendations of High Powered
Committee and also indicated therein the aspects on which MOEF agreed and also
the aspects which are now covered by amendment of H.W. Rules, 1989, by
Notification dated 23rd May, 2003. The aspects to which MOEF has agreed are
stated in their affidavit dated 13th September, 2003. The MOEF shall ensure that
the agreement does not remain only on paper. The directions sought for by the
petitioner to which MOEF has agreed shall be implemented in letter and spirit.
The implementation wherever it is to be done by the MOEF, should be done
forthwith and wherever it is required to be done by any other Ministry or
authority or agency, the Nodal Ministry/MOEF shall ensure that it be so
implemented. In case of any doubt or dispute, it would be the responsibility of
MOEF to satisfy this Court. Further, the Ministry shall also develop a mechanism
to ensure that wherever its directions are not implemented, necessary action is
taken against those who are responsible for it. If any Inter-Ministerial
consultation is required, the lead is to be taken by MOEF to see that such
consultation taken place and effective measure are taken.
15. First, the legal principles in brief may be noticed.
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 vs. Union
of India & Ors. [(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 not 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 statues 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’s 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 Vs. Prof. M.V.
Nayudu (Retd.) and Ors. [(1996 5 SCC 718] where, after referring to the
principles noticed in Vellore Citizens’ Welfare Forum’s 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 at
same pedestal as human rights concerns, both being traced to Article 21 of the
Constitution of India. 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 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 Vs. Union of India & Anr. [(1997) 3 SCC 433].
The Basel Convention, it cannot be doubted, effectuates the fundamental rights
guaranteed under Article 21. The rights 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-shrined principles have been kept
in view by us while examining and determining various aspect and facets of the
problems in issue and the permissible remedies.
16. There are various aspects of the Report which require a serious
consideration and implementation by the Central Government. Before we indicate
some of those aspects, directions/orders that have been passed by this Court on
23rd, 24th and 25th September, 2003, may be reproduced as under :
Order/directions Dt.: 23rd September, 2003
“While considering the recommendations regarding the changes required to be made
to regulate the functioning of Units handling hazardous waste under the category
of safeguards in the import of hazardous waste and the suggestion about deletion
of sub-rule (3) of Rule 12 of Hazardous Waste Rules, as amended in May, 2003,
our attention has been drawn to Schedule – 3. Schedule – 3 in turn, refers to
Rule 3(14) (c) and Rule 12(a). Rule 3(14) defines “hazardous waste”. Rule 3(14)
(c) reads as under :
“Rule 3 :
Sub-rule (14)(c): Wastes listed in Lists ‘A’ and ‘B’ of Schedule – 3 (Part-A)
applicable only in case(s) of import or export of hazardous wastes in accordance
with Rule 12, 13 and 14 if they possess any of the hazardous characteristics
listed in Part-B of Schedule – 3.
Explanation : For the purposes of this clause :
(i) all wastes mentioned in column (3) of Schedule – 1 are hazardous wastes
irrespective of concentration limits given in Schedule – 2 except as otherwise
indicated and Schedule – 2 shall be applicable only for wastes or waste
constituents not covered under column (3) of Schedule 1;
(ii) Schedule – 3 shall be applicable only in case(s) of import or export.”
17. In the Notification dated 23rd May, 2003, there is no Rule 12(a). The
apprehension expressed is that Rule 12(3) on account of its ambiguity may be
abused and under garb of the said Rule the raw material of banned items may be
imported. Further, Mr. Parikh contends that there does not appear to be any
necessity of sub-rule(3) in view of Rule 12(1). Let Mr. ADN. Rao take
instructions and file affidavit clarifying the position. If necessary, requisite
corrigendum should be issued.
18. Rule 13, 14 read with definition of ‘export’ ‘exporter’ and ‘import’
‘importer’ may lead to some confusion on account of certain apparent
ambiguities. Let Government of India look into it and file an affidavit.
19. Sub-rule (12) of Rule 19 reads as under :-
“In case of units registered with the Ministry of Environment and Forests or the
Central Pollution Control Board for items placed under “free category” in
Notification nos. 22(RE-99) 1997-2002 dated 30th July, 1999; 26(RE-99) 1997-2002
dated 10th September 1999; 38 (RE-2000) 1997-2002 dated 16th October, 2000 and 6
(RE-2001) dated 31st March, 2001 issued by the Directorate General of Foreign
Trade and other similar notification issued based on the advice of Ministry of
Environment and Forests, prior import permission from that Ministry shall not be
required.”
20. Rule 19 deals with procedure for registration and renewal of
registration of recyclers and re-refiners.
Sub-rule (1) requires every person desirous of recycling or re-refining
non-ferrous metal wastes as specified in Schedule 4 or used oil or waste oil to
register himself with the Central Pollution Control Board. There are two
provisos to sub-rule (1). The said provisos provide the cases where registration
is not required. Apparently, it seems difficult to comprehend the reason for
inserting sub-rule (2) in Rule 19 which provides for registration and renewal
and sub-rule (12) providing for dispensing with prior import permission.
Prima-facie we hope that the intention is not to permit banned items or
hazardous waste items under the guise of sub-rule (12) of Rule 19. It can have
the effect of setting at naught Rule 13. This aspect too requires to be examined
by Ministry of Environment & Forests and affidavit filed within 8 weeks.”
21. Order/directions Dt: 24th September, 2003
“In respect of adequate facilities of testing at the laboratories at the gateway
points, i.e., Ports, ICDs Customs Areas, for testing potentially hazardous
wastes and recyclables and the said laboratories being manned by the trained
staff, the stand of MOEF is that the customs labs are being upgraded. Mr. ADN.
Rao seeks 12 months time to upgrade the labs. Allowing the said request, but
directing quarterly reports to be filed in this court detailing the progress
made, the labs as suggested should be upgraded and manned staff officers posted
within the period of 12 months. Compliance report shall be filed soon after
expiry of 12 months. Meanwhile, the test shall be conducted by accredited
laboratories certified by CPCB.
22. CPCB, Mr. Panjwani states, is imparting periodical training to Customs
and Port officials, the document prepared by Dr. KR Ranganathan, a member of HPC,
on the aspect of testing method for analysis of hazardous wastes,
instrumentation and training requirements shall form part of the training
imparted by CPCB.
23. RE: Customs Act :
Section 11 of the Customs Act, 1962 empowers the Central Government to prohibit
either absolutely or subject to such conditions as may be specified in the
Notification the import and export of the goods if satisfied that it is
necessary so to do for any of the purposes stated in sub-section (2). It is
implicit that if import is in contravention of any law for the time being in
force, such import is required to be prohibited.
24. The import of 29 items has already been prohibited under Schedule – 8 of
the Hazardous Waste Rules as amended in May, 2003. We see no reason why
Notification under Section 11 prohibiting the import of the said 29 items shall
not be issued forthwith. We direct the Central Government to issue such a
Notification without any further delay.
25. Basel Convention has banned 76 items. We are contemplating issuance of
directions to Ministry of Environment and Forests to examine the remaining
items. It is implicit that if more items are banned, the corresponding
Notification shall be issued by the Central Government under Section 11 of the
Customs Act.
26. The HW Rules allow import of certain items subject to fulfillment of
conditions. The requisite notification shall be issued making the compliance of
the said conditions mandatory before the imported consignment is cleared.
27. RE : Major Port Trust Act :
The Competent Authority, while disposing of hazardous waste, in exercise of
power under Sections 61 & 62 of the Major Port Trust Act, 1963, is directed to
ensure that the Hazardous Waste Rules, as amended up to date, shall be complied
with, in particular, Rule 19 and 20 thereof.
28. RE : Foreign Trade (Development & Regulation) Act, 1992 :
The Export and Import Policy (Exim Policy) issued from time to time, under the
Foreign Trade (Development and Regulations) Act, 1992, inter alia, sets out the
goods, import whereof is prohibited. We direct the Central Government that the
said policy shall also correspond with the Hazardous Waste Rules, as amended
from time to time, which means that if import of any item is prohibited under
Hazardous Waste Rules, it shall be reflected in the prevalent Exim Policy.
29. For design and setting up of disposal facility as provided in Rule 8-A
of HW (M&H) Rules, the Criteria for Hazardous Waste Landfills published by CPCB
in February, 2001 and the Manual for Design, Construction & Quality Control of
Liners and Covers for Hazardous Waste Landfills published in December 2002 shall
be followed and adhered to. Alongwith the affidavit of Mr. M. Subba Rao, filed
on 13th September, 2003, Annexure II sets out status of hazardous waste disposal
sites. According to the said Annexure, 89 sites were identified out of which 30
were notified. Mr. ADN Rao, on instructions, states that out of 30, 11 common
landfills are ready and operational – two in Maharashtra, one in Andhra Pradesh
and eight in Gujarat and that some of these landfills are in accordance with the
Criteria and Manual aforesaid. The steps shall be taken to expedite the
completion of the remaining landfills. In this view, steps should be taken of
shifting of hazardous waste from wherever it is permissible to these landfills.
The transport of hazardous waste would be in accordance with Rule 7 and the
Guidelines issued by CPCB from time to time. Mr. Panjwani states that the
guidelines are ready. Let the same be issued forthwith.
30. MONITORING :
The CPCB shall issue guidelines to be followed by all concerned including SPCB
and the operators of disposal sites for the proper functioning and upkeep of the
said sites.
31. RE: Impact of Hazardous Waste on Worker’s Health :
We have considered the suggestion of HPC under term of reference no.4 relating
to impact of Hazardous Waste on Worker’s Health. Having regard to the
recommendations and submissions made by the learned counsel we direct the
Ministry of Labour and Ministry of Industry to constitute a special committee to
examine the matter and enumerate medical benefits which may be provided to the
workers having regard to the occupational hazard as also keeping in view the
question of health of the workers and the compensation which may have to be paid
to them. The Committee while examining the recommendations, shall also keep in
view the judgment of this Court in Consumer Education and Research Centre vs.
Union of India (1995 (3) SCC 42). The report of the special committee shall be
submitted within a period of four months.”
32. Order/directions Dt: 25th September, 2003
“Pursuant to the directions of this Court dated 4th February, 2002 and the
affidavits filed on behalf of Ministry of Environment & Forests, Government of
India, in particular, the affidavits of Mr. PV Jayakrishnan dated 22nd February,
2002 (page 2291), 6th March, 2002 (page 2381) and Mr. M.Subba Rao dated 19th
March, 2002 (page 2385), prima facie it seems that 15 importers, whose names and
addresses are given at page 2386, illegally imported waste oil in 133 containers
in the garb of lubricating oil. The HPC in its report (pp. 170-171) had noticed
the presence of the consignment of this waste oil. On direction of this Court,
the laboratory tests undertaken have shown the same as hazardous waste oil. By
order dated 5th May, 1997, this Court directed that no import would be made or
permitted by any authority or any person of any hazardous waste which is already
banned under the Basel Convention or to be banned hereafter with effect from the
date specified therein. The Ministry of Environment & Forests is said to have
spent a sum of Rs. 6.35 lacs on analysis of waste oil. There does not appear to
be anything on record showing that any action of substance has been taken
against the importers and others in permitting the import in violation of the
order of this Court. Further, it does not appear that MOEF has taken any steps
to recover the amounts spent on analysis. It seems that the said containers are
lying at Nhava-Sheva Port. Presently one of questions that requires
consideration, is of re-export or destruction of the said substance and other
action/s to be taken as a result of the illegal import. Before we pass orders,
we deem it appropriate to issue notice to the 15 importers as also to the
concerned Commissioner of Customs. The Commissioner of Customs shall file an
affidavit stating as to what steps have been taken up to date in respect of the
aforesaid 133 containers. The importers are directed to show cause why the
consignment in question shall not be ordered to be re-exported or destroyed at
their cost and why the amount spent on analysis in the laboratory be not
recovered from them and why they should not be directed to make payment of
compensation on Polluter Pays Principles and other action taken against them. We
direct Ministry of Environment & Forests to serve the 15 importers as also the
concerned Commissioner of Customs. The Ministry would be empowered to have
assistance from Police/District Magistrate/Metropolitan Magistrate for affecting
service of notice on the importers. We direct these authorities to render all
possible assistance in this regard. Dasti notices to be given.”
33. The importers and the Commissioner of Customs have been given time to
file affidavits and on consideration thereof appropriate directions would be
issued.
34. The Basel Convention, which we have noticed hereinbefore has banned
import of 76 items. The H.W.Rules, 1989, however, ban 29 items. What is the
position of the remaining items, we do not know except the stand of MOEF that
the same is under consideration. We do wish to place on record that the Report
of High Powered Committee (HPC) was submitted nearly 2 ½ years ago. Considering
the magnitude of the problem the MOEF should have bestowed more serious
consideration that it has on these matters and taken appropriate steps.
35. In Chapter 5 relating to General Findings : Environment Protection
Authorites – relating to the working of the Ministry of Environment and Forests
and its various divisions, the structure of the Ministry, funds available to it,
HPC has highlighted the approach which this particular Ministry and other
connected with environment matter, are required to adopt. The said observations
are:
5. GENERAL FINDINGS: ENVIRONMENT PROTECTION AUTHORITIES
5.1 THE MINISTRY OF ENVIRONMENT AND FORESTS (MOEF)
“The MOEF is the focal point in the Government of India for all matters relating
to the environment. As the nodal Ministry, its first and foremost responsibility
is to ensure coordination with all other Ministries that come into the picture.
HPC discussions and studies show that there are major roles that have to be
played by other Ministries as well.
For example, all imported goods have to pass through Customs, which comes under
the Ministry of Finance. All matters relating to imports and exports are handled
by the Ministry of Commerce under whom the DGFT and DGCIS (located in Calcutta)
operate. The need for employment generation, and consequently, matters relating
to labour and industrial policy, industrial safety, occupations health hazards,
compensation for disability/death are all matters dealt with by the Ministry of
Labour.
A significant part of environmental pollution relates to water (both surface
water and, particularly, groundwater); the Ministry of Water Resources is
clearly involved. Toxicological aspects of hazardous wastes like heavy metals,
hormone disrupting chemicals and such other issues have to be dealt with by the
Ministry of Health and major research facilities that come under it,
particularly the Indian Council of Medical Research, and in accordance with the
CSIR and the Department of Biotechnology.
There will also be many other Ministries involved on specific issues, such as
the Ministry of Petroleum and Natural Gas in respect of the oil sector, and the
Ministries of Railways, Defence and Surface Transport on matters relating to
large scale use of battery systems and their disposal. There will be need for
interaction with the Ministry of Law on matters that relate to legislation, and
extensively with the State Governments in relation to implementation of laws,
rules and regulations, and guidelines at grassroots level. This is not meant to
be a complete statement covering all those who carry responsibilities that are
connected with the environment, but only to highlight the major ones.
The HPC has noticed that the principal way of functioning thus far has been for
the Ministry of Environment and Forests to write standard letters (usually at
lower official levels) which either are not answered, unsatisfactorily answered
or provide information that will not bear scrutiny; usually there is no
scrutiny. There seems to be a uniform lack of concern at all levels in
Government about the serious implications of the import, generation, buildup,
transport and disposal of hazardous wastes in the country.
The MOEF is (presently) headed by a Cabinet Minister assisted by a Minister of
State; and they have under them a Secretariat headed by a Secretary to the
Government of India (from the transferable administrative side). The Ministry
has staff consisting of administrative and technical personnel. The
administrative staff strength (IAS/IRS/CSS etc.) in the Environment Wing of the
MOEF has 435 sanctioned posts against which 416 posts are filled up. However,
scientific/technical staff strength has only 86 sanctioned posts against which
79 posts are filled up. It is thus seen that there is a severe imbalance between
the number of administrative and scientific posts in the MOEF. The factual
position is presented in Vol. II; Annex A25. It must be recalled that this
Ministry – both Environment and Forestry sides – was set up as a scientific,
promotional Ministry and not as an administrative/bureaucratic Ministry which it
has become. The HPC is of the view that this change has been most undesirable,
particularly with officers as senior levels, who are all administrators, subject
to frequent transfers.
The Ministry can (and sometimes does) call upon the CPCB for advice on technical
matters. From time to time, it appoints, at its discretion, technical committees
for dealing with special issues.
The MOEF has a Hazardous Substances Management Division (HSMD) – presently
headed by an IAS officer at Joint Secretary level – which deals with the
management of hazardous wastes (both indigenous and imported), hazardous
chemicals, major chemical accidents, municipal solid waste, biomedical waste and
liability and compensation connected with chemical accidents. The Division is
also the focal point for international environment agreements, namely the Basel
Convention on the Trans-boundary Movement of Hazardous Waste and its Disposal;
the Convention on Persistent Organic Pollutants (POPs) (being negotiated); and
Prior Informed Consent (PIC) procedures. The overall implementation of the HW
rules, 1989, along with various regulations enacted on the above subjects all
over the country lies with this Division. The Division has an allotment of only
6 scientists.
The ministry of Environment and Forests has a total annual plan budget of Rs.
765 crores (Rs. 432 crores for Environment and Rs.333 crores for Forests) and a
non-plan budget of Rs.115 crores (Rs.81 crores for Environment and Rs.34 crores
for Forests) for the year 2000-2001. The HPC was told that the HSM Division is
allocated approximately Rs.3.6 crores (of the Plan budget). However, from the
53rd report on the demands for grants (1998-99) presented in the Rajya Sabha,
the HPC noted that out of the sum of Rs.4 crores allocated to the HSM Division
in that year, actual expenditure was only Rs.2.74 crores and the rest was
surrendered. Yearwise budget allocations of the MOEF for the last five years are
shown under Table 19.
It may be noted from Figure 1 (MOEF structure dealing with hazardous wastes)
that there are only four officers responsible for overseeing the implementation
of the HW Rules throughout the country. These officers are also responsible for
formulation and implementation of new policies concerning management of these
hazardous wastes, besides representing the Government at the Basel negotiations.
Further, as can be seen from the same Figure 1, these officers also have
responsibilities other than hazardous wastes within the Ministry.
The fact that the technical component of the MOEF is small, particularly noting
that it was set up as a scientific department, and further, that the HSMD is
even smaller, and the resources made available cannot be fully utilized, are all
causes for the all-pervading malaise e.g. dependence on formulation of rules and
introducing legislation, ritualistic adherence to bureaucratic formalities and
no though relating to promotional approaches, complacency, and finally, lack of
focus on implementation.
The HPC believes that the principal role and responsibility of the MOEF should
be to ensure the necessary concern and sense of urgency, and to ensure
coordination amongst the various Ministries and State Governments on issues as
they come Up. Such coordination can be at the level of meetings taken by the
Minister/Secretary in-charge of the Department; or where necessary, referred to
the Cabinet Secretary who chairs Secretary-level inter-Departmental meetings.
Ultimately, what we expect are results and not the paper-pushing, characteristic
of bureaucracy, that provides the usual alibi.
Another important role that the MOEF has to play is to create awareness in
society and other stakeholders are large, and to ensure educational training
programmes. The latter should certainly cover those directly concerned with
implementation programmes, e.g. environmental scientists, officials etc. A
broader scope is required, one such as characterizes the campaign relating to
tobacco where the hazards of lung cancer, respiratory diseases and so on are
brought out in stark fashion; increasingly this has resulted in a ban on smoking
in public areas/buildings; in aircraft, etc.
The MOEF also has a responsibility to ensure that research and development is
conducted on scientific and technological aspects relating to this area. By and
large, broad ranging and futuristic research has to be conducted with the
support of the Central Government. It is unlikely that, in the present financial
situation, any significant financial support will come from State Governments
for this. The MOEF should also encourage industry and industrial associations to
participate in research, particularly related to their specific areas of
activity e.g. ETPs, CETPs, disposal facilities, clean and cleaner technologies,
etc. There can also be a cess levied on those industries dealing with hazardous
material, which should be specifically earmarked for the promotion of research
and development. The HPC has dealt with the importance of research and
development in this area at another place in this Report.
The MOEF has to work closely with the Planning Commission in the area of
sustainable development. The need for development programmes to increase
production, productivity and to create employment are well recognized. GDP
growth, industrialization, energy production, exports are all part of this.
However, this cannot be at the cost of present and the future in terms of
quality of life for society as a whole. Industrial policy relating to what
industries should be encouraged and permitted, the role of Small and Medium
Enterprises (SMEs), issues relating to industrial estates (including their
governance, facilities to be provided etc.), land use patterns, urban
development and zoning and such other matters are of a general nature which call
for overall national policy. These cannot be dealt with by any individual
Ministry/Department with concerns only for its limited area of responsibility.
MOEF has the responsibility to put forward the environmental implications
implicit in various policy options.
The MOEF will clearly be the focal point in the Government of India with regard
to the international issues that arise in this area.
The MOEF must be encouraged to make use of the vast technical capabilities that
exist in the country. This may be in the form of facilities under a National
Environment Protection Agency if such is constituted, or the present CPCB,
suitably strengthened and assigned necessary responsibilities. In addition, the
State Pollution Control Boards must be equipped and staffed properly, as also
laboratories coming under various scientific agencies in the country and in the
private sector. The MOEF must ensure that adequate facilities are available at
the gateway points in the country (e.g. Ports, ICDs, Customs areas) to make the
first level measurements to aid decision-making; as also certified laboratories
(whether these are in the public or the private sector) which can provide
reports that are scientifically valid and credible. Increasingly, exports will
have to be environmentally compliant, suitably labelled and certified.
The above is meant to illustrate the firm view of the HPC that there are enough
tasks for the MOEF to perform at the highest level, in terms of ensuring that
the rest of the structure concerned with the area of environment (particularly
hazardous wastes, their import, generation and disposal) functions in a manner
where there is waste minimization in production, reduced used of toxics, maximum
environmentally sound recycling, alternative uses of so-called wastes, reduced
end-of-the pipe solutions and, finally, where unavoidable, environmentally safe
disposal facilities. It is the foremost responsibility of the MOEF that the
national institutional framework operates in a manner that can ensure this, and
that there is a phased targetted programme of actions. It should not be
satisfied with just issuing rules/guidelines that are not implemented.
36. Nothing much seems to have been done. It is, therefore, imperative to
direct the Central Government to consider in detail and with all seriousness,
the recommendations of restructuring and other suggestions which flow from the
aforequoted part of the Report. The Central Government and MOEF would also
consider the strengthening of Hazardous Substance Management Division but not at
the cost of weakening the other divisions.
37. Reverting to the question of ban on the lines of Basel Convention, while
examining the question of placing a ban on other items in addition to 29 items,
the MOEF will take into consideration what has been stated under heading ‘A’
(Imported Hazardous Waste which need to be included in the Rules and ban of
other Wastes) in the directions sought for by the petitioner on the basis of the
recommendation of HPC. Further, the Ministry would also examine the question of
banning used edible oil, cow dung, plastic scrap used PVC in any form, pet
bottles etc. which, though not covered by Basel Convention, has hazardous impact
in terms of the HPC Report. According to the recommendations of HPC, these items
also deserve to be banned. The Ministry shall also examine any other item which
may have hazardous impact.
38. Next we consider the aspect of units that are operating without any
authorisation or in violation of the conditions of authorisation issued under
H.W. Rules, 1989 as amended up to date. There are many such Units as per report
of HPC. [See HPC Report at B: Present status of units handling Hazardous Wastes
included in ToRs.2,6, 7 and 9]. State Pollution Control Boards and Pollution
Control Committees are directed to close forthwith such Units.
39. On aforesaid aspect, one of the directions sought for by the petitioner
is also that the authorization for any unit should not be issued or renewed
until the occupier undertakes that they have a programme in place to reduce the
volume or quantity and toxicity of hazardous wastes to the degree determined by
them to be economically practicable and that the proposed method of treatment,
storage and disposal is the most practicable method currently available to them
which minimizes the present and future threat to human health and environment.
By the Hazardous Wastes (Management & Handling) Amendment rules, 2003 Rule 21 in
respect of Environmentally Sound Technologies and Standards for re-refining or
recycling has been incorporated. Instead of issuing the directions as suggested,
in our view, the purpose would be better served if the CPCB, from time to time,
issues directions to SPCBs and all PCCs bringing to their notice the latest
technologies and requiring the said Boards/Committees to ensure compliance
thereof by the concerned units within the fixed time frame. CPCB is directed to
comply.
40. Regarding the role of SPCBs, it has been observed by the HPC that in
relation to authorisation granted, few or no authorizations were granted by the
said Boards practically in the entire period after the Rules were notified up to
the filing of the Writ Petition and the orders of the Court. Thereafter
authorizations were granted enmasse. These authorizations were granted
explicitly for the purpose of fulfilling the formal requirement under Rule 5 of
the Rules so as not to attract punishment of the Court. The same were found by
the Committee to have been granted without the recyclers having appropriate
facilities for safe disposal of hazardous waste as required under Rule 5(4). It
has further found that except in few cases like Andhra Pradesh and Gujarat no
efforts appeared to have been made by the SPCB’s to inspect facilities and to
bring pressure on the units to bring their practice of handling hazardous wastes
in line with the authorization granted.
41. HPC has recommended “the concerned SPCB should evolve a mechanism or
checklist to ensure that an authorization to any unit generating or handling
hazardous waste is granted only where it is justified by the availability of
adequate treatment and disposal facilities and of adequately trained manpower.
The authorization should be renewed only when, additionally (a) the conditions
prescribed by the SPCB have been duly observed by the occupier, (b) proper
measures for the protection of health of workers have been taken and (c) a sound
record of compliance with regulatory requirements imposed earlier has been
maintained. The SPCBs should insist that any hazardous waste previously dumped
by a unit be cleared before authorization is issued or renewed to a unit.
Citizens may be consulted by public notice in this respect.” In order to achieve
the above object CPCB shall issue requisite checklist to SPCBs and ensure its
compliance.
41.1 Further, for effective implementation of the directions and to regulate
the hazardous waste it is necessary to strengthen the SPCBs and CPCB by
providing them the requisite infrastructure and manpower so that they can issue
the necessary guidelines to monitor the handling of the hazardous wastes as
suggested under Term of Reference No. 12, in particular, the suggestion as
contained at serial nos. 3,4,6 & 7.
42. The HPC has found Hazardous Waste dumped in open and has stated that :
“ The HPC has concluded that the hazardous wastes situation in India is fairly
grim:
Hazardous wastes, found dumped in the open environment have been the cause
of widespread pollution of ground water, creating drought-like situations in
areas traditionally not lacking in water suppliers. Public hearings conducted by
the HPC in several cities brought forward pleas and representations of distress
from affected victims and harsh complaints about lack of response from statutory
authorities. The authorities appear to have ignored several warnings, reports,
investigations and studies that highlighted zones of ecological degradation due
to indiscriminate dumping and disposal of hazardous wastes. The HPC noted that
there was a lack of policy and vision at the highest level. This has resulted in
a very poor management system. This situation cannot be allowed to continue.”
43. The authorities are directed to ensure that hazardous wastes are not
allowed to be discharged in open dumps and on violation thereof prompt action be
taken as per law.
44. RE: C. Implementation of Plastic Waste Recycling Rules, Battery Waste
Recycling Rules, Draft Used Oil (Management and Handling) Rules.
MOEF is directed to ensure compliance of “Recycled Plastics, Plastics
Manufacture and Usage Rules, 1999 and the “Batteries Management and Handling
Rules, 2001.” The Ministry shall issue directions to all Public Sector
Institutions not to openly auction their hazardous wastes but only to those who
are registered units having Environmentally Sound Management Facilities.
45. RE: D. Safeguards in the import of Hazardous Waste; changes
required to regulate the functioning of the Units handling hazardous waste:
Having considered the observations of HPC it would be appropriate at this stage
to direct CPCB to consider the following suggestion of HPC:-
Particular care must be taken to prevent industries that use our Indian soil for
processing of products and commodities of which production has been banned in
other industrial countries. Units which propose to engage in this activity
should not be permitted or licensed under any circumstances. The Rules should
effectively prevent this. It is not enough to protect the country from the
import of hazardous wastes; we should also look carefully at the import of those
industries that will generate problematic hazardous wastes. The import of
industries or products must be carefully screened in order to avoid dirty
technologies and products, and the CPCB should do research on this so that the
relocation of these industries from industrialised countries to India is
effectively thwarted and technology transfer does not turn into hazards
transfer. The research done in this regard should be communicated by the CPCB to
the SPCBs to form part of their decision-making data regarding consents and
authorizations. After research, if necessary, CPCB shall take up the matter with
the MOEF for requisite regulatory measure.
46. Another aspect that has been brought to our notice is the malpractice
arising out of purported import of some permitted items.
47. From the submissions of Mr. Parikh and Mr. Joshi appearing for Container
Corporation of India, it appears that unscrupulous traders in the garb of
importing used oil or furnace oil, in fact, import waste oil which is a banned
item. They also Illegally import zinc wastes despite it being not permissible
except in case where more than 65% of zinc can be recovered from the wastes.
48. Having regard to above, we direct that besides other action, when
illegal import of hazardous waste takes place due to non-fulfilment of the
requisite conditions required under the Rules, an enquiry should be conducted
and appropriate action taken against concerned officer/officers of department
responsible therein and, if necessary, a specific provision to that effect can
be incorporated in Rules, wherever needed.
49. In respect of collection and transportation of used oil from different
sources, authorities shall ensure that the same are sold to registered refiners
or recycler and they give an undertaking to refine or recycle in terms of the
Rules.
50. Reverting now to the issue of incinerators it is to be kept in view, as
observed by the HPC that incineration is the most important treatment method for
the destruction of all high calorific and highly toxic wastes. High temperature
incineration at 12000 degree celcius mineralises (breaks down into basis
non-toxic components) all kinds of organic matter. Destruction efficiencies of
effectively 99.99% of toxic compounds with no generation of persistent organic
pollutants should be the prima criteria for design of such disposal systems. It
has further observed that in addition, while designing the disposal system,
relevant operating parameters for example temperature, residence time and
turbulence should be considered. On inspection it was found by HPC that barring
a few, most of the incinerators are mere combustion chambers or industrial
boilers where the maximum temperature is around 500/550 degree C, which is much
too low. Often they are not equipped with adequate air pollution control devices
and all types of wastes, including non-chlorinated the chlorinated hydrocarbons,
being burnt in the so-called incinerators. In the view of the HPC such
incinerators, rather than destroying the hazardous constituent, actually succeed
in generating toxic gases. There seems to be an urgent need to develop the
design criteria for incinerators to safeguard the environments so as to have
proper and efficient working of incinerators close to the place of generation of
hazardous wastes.
51. The HPC has comprehensively dealt with under Chapter 6.2 aspect of Right
of Information and public involvement in hazardous waste issues, while
considering the future agenda of taking hazardous waste aspect seriously.
52. Section 3(2)(12) of Environment Protection Act, 1986 stipulates
collection and dissemination of information in respect of matters relating to
environment pollution. Principle 10 of Rio Declaration recognizes the right to
receive information and community participation with particular emphasis on
hazardous materials. The said principle reads as under :
“Principle 10: Environmental issues are best handled with the participation of
all concerned citizens, at the relevant level. At the national level, each
individual shall have appropriate access to information concerning the
environment, that is held by public authorities, including information on
hazardous materials and activities in their communities, and the opportunity to
participate in decision making processes. States shall facilitate and encourage
public awareness and participation by making information widely available.
Effective access to judicial and administrative proceedings, including redress
and remedy, shall be provided.”
53. Principle 4 stipulates that in order to achieve sustainable development,
environmental protection shall constitute an integral part of the development
process and cannot be considered in isolation from it.
54. Principle 19 stipulates that the States shall provide prior and timely
notification and relevant information to potentially affected States on
activities that may have a significant adverse trans-boundary environment effect
and shall consult with those States at an early stage and in good faith.
55. The Report has emphasized that the members of alert and informed
community who are fully aware of the nature of hazards and its impact on their
health can help in protecting and saving the natural resources. It has referred
to the law enacted in USA in the wake of Bhopal Gas Tragedy, namely, Emergency
Planning and Community Right to Act, 1986, which requires preparation of
emergency response plans by the companies with involvement of local community.
It is also noticed that though Bhopal Gas Tragedy took place in our country, no
such legislation has been enacted so far. Further HPC has given example of
decision taken by Andhra Pradesh Pollution Control Board which decided that all
Industrial factories shall put up two sign boards 6x4 ft. each at publically
visible place at the main gate; the first providing information regarding the
facility specific consent for establishment and consent for operating (CFO)
conditions and the second providing information of release of pollutants” air
emissions, water discharges and solid waste. It has been recommended that public
participation should be secured in the management of Environment Pollution and
Hazardous Waste to maximum possible extent. Suggestions given in these regards
are these :
(i) Selected local residents should be appointed as wardens for
environmental surveillance, particularly to take note of illegal dumping of
hazardous wastes.
(ii) Access to public records with the environment protection authorities
should be freely allowed to the public, as the right to a healthy environment
has been defined as part of the Right to Life under Article 21 of the
Constitution.
(iii) Relevant important information should be displayed on notice boards
and newspapers and communicated through radio, television and the Internet. The
HPC would like to see all industries, involved in hazardous chemicals and
generating hazardous wastes display on-line date outside the factory gate, on
quantity and nature of hazardous chemicals being used in the plant, as well as
water and air emissions and solid wastes generated within the factory premises.
If such date is not made available, the unit should be asked to show cause or
even be asked to close down.
(iv) Informers and “whistle-blowers” within industry who provide
information, should be protected and strict confidentiality about them
maintained.
(v) Third-party audit of hazardous wastes, where the audit team includes
members of the community, should be made a routine practice.”
56. The suggestion is that an extensive awareness generation campaign should
be taken by regulatory agencies. The HPC has prepared a list of Themes and short
T.V. Programmes on hazardous wastes. All these aspects require a serious
consideration by the concerned authorities.
57. The legal position has already been noticed. Clearly, the Right to
Information and Community Participation necessary for protection of Environment
and Human Health is an ineliniable part of Article 21 and is governed by the
accepted environment principles. The Government and the authorities have to
motivate the public participation by formulating the necessary programmes.
58. Another aspect which deserves to be noticed is about the effect of ship
breaking activity covered TOR No.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 concerned authorities have to be
vigilant about the hazardous waste which may be generated if appropriate timely
action by various agencies, in particular, Maritime Board and the SPCB are not
taken. The major ship breaking activity in India is at Alang in State of Gujarat
and, therefore, 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 recommendation of HPC, the Iner-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 organizations and representatives of the ship breaking
Industries.
59. The ship breaking operation referred to above cannot be permitted to be
continued without strictly adhering to all precautionary principles, CPCB
guidelines and taking the requisite safeguards which have been dealt extensively
in the report of precautionary principles, CPCB guidelines and taking the
requisite safeguards which have been dealt with extensively in the report of HPC
which include the aspect of the working conditions of the workmen.
60. One of the issues issued to be dealt with is the disappearance of
hazardous waste from authorised ports/(Indian Container Depot)ICDs/Containers
Freight Stations (CFSs) and also how to deal with the number of containers lying
there. Disappearance of hazardous waste is subject matter of Term of Reference
No.13. By Order dated 10th December, 1999, it was directed by this Court that
list of importers who made illegal imports shall be placed on record. Our
attention has been drawn to various affidavits as also to para 4.2 of HPC Report
relating to large scale unauthorised imports: Since the list of such illegal
imports was not forthcoming, this Court by an Order dated 3rd December, 2001
directed the Government to enquire into the matter. The Order dated 3rd
December, 2001 led to appointment of 8 members Committee by the Government, to
be chaired by Mr. A.C. Wadhwan. The Wadhwan Committee has submitted Report dated
26th July, 2002. According to the Report of the said Committee, the stock
position of hazardous goods lying at various ports/ICDs/CFSs is as follows;
Name of the Port/ICD/CFS No. of Containers
ICD, Ludhiana……………………………… 63(+21747 drums)
ICD, Tughlakabad…………………………. 427
ICD, Ballabhgarh…………………………… 10
Kandla Port Trust…………………………… 21
Mumbai Port Trust………………………… 34
Jawaharlal Nehru Port Trust……………… 331
Calcutta Port Trust………………………… 1
Chennai Port Trust………………………… 83+990 drums
(Quantity in tonnes)
ICD Bangalore…………………………………86
61. The Report suggests that action against the importer for illegal import
as per Customs Act, 1962 may have to be taken. Further, it notices that Central
Board of Excise and Custom, Ministry of Finance were requested to ensure action
against the importers of illegal consignments of hazardous waste.
62. Broadly there are two aspects of the matter; one relating to those
illegal imports which have been cleared and the consignments have already found
its way to the market. These alleged illegal imports were made few years back.
In respect of this category of illegal imports, we direct that action against
all concerned shall be taken by the concerned authorities in accordance with
law.
63. The second aspect relates to the stock of aforenoticed hazardous waste,
lying at various ports/ICDs/CSFs. The question is as to the manner in which this
stock be cleared from the respective ports/ICDs/CSFs. Such stock can again be
divided into two categories; one, the category in respect whereof the import is
banned under H.W. Rules, as amended upto date or falling under a banned category
in terms of Basel Convention. Reference in this regard be also made to the order
of this court dated 5th May, 1997 referred to hereinbefore. Out of the various
consignments lying at aforesaid places, the consignments under this category
shall have to be treated differently. Such consignments have either to be
reexported, if permissible, or destroyed at the risk, cost and the consequences
of the importer. There cannot be any question of permitting these consignments
making their way to the Indian soil.
64. The second category relates to such hazardous waste in respect whereof
the ban is not complete and which hazardous waste is regulated since it is
permissible to recycle and reprocess it within the given and permissible
parameters by specified authorised persons having requisite facilities, under
the Rules, as amended up-to-date. The consignments falling under this category
shall be released/disposed of or auctioned, in terms of Rules, to the registered
recyclers/reprocessors. In case, after efforts, an importer of any of the
categories is not traceable, the consignment imported by such importer may be
dealt with at the risk, cost and consequences of that importer. The consignment
of such importer cannot be permitted to remain at the ports etc. for reason of
the importer not being traceable.
65. These consignments in terms of the directions aforesaid shall be dealt
with/disposal of/auctioned by the Monitoring Committee appointed pursuant to
this order.
66. It appears from the Report that about 80% of country’s hazardous waste
is generated in the State of Maharashtra, Gujarat, Tamil Nadu and Andhra Pradesh.
This may also show good industrial growth in those States. Be that as it may, to
ensure that the generation of hazardous waste is minimum and it is properly
handled in every State including the aforesaid States, in particular, it is
necessary to appoint a Monitoring Committee to oversee the compliance of law,
directions of this Court and Rules and Regulations.
67. MoEF has constituted a Standing Committee on hazardous waste to advise
the Ministry on issues pertaining to hazardous waste and other related areas.
The Terms of Reference of the said Committee are these:
(a) Characterisation of hazardous wastes:
Identification of hazardous waste an characterization of the constituents
that would render such wastes hazardous.
(b) Prohibition/restriction of Hazardous Wastes:-
Identification and listing of hazardous wastes of prohibition/restriction
for exports/imports and handling of these wastes.
(c) Environmentally Sound Technologies:- Identification and listing of
Environmentally Sound Technologies for Reprocessing and recycling of wastes,
treatment and disposal; and
(d) Any other matter requiring special advise from time to time.
The composition of the Committee is:-
Dr.G. Thayagarajan, Chairman
Senior Secretary,
COSTED, Chennai
Mr. V. Rajagopalan, Chairman, CPCB Member
Director, NEERI, Nagpur Member
Director, NML Member
Director, IIP, Dehradun Member
Director, NCL, Pune Member
Dr.N.H. Hosabettu Member-Secretary
Director, HSM Div., MoEF
Director, IICT Co-opted Member
68. 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.
69. In regard to import of sludge oil under Marpol Convention, we direct
Central Government to file an affidavit, within three weeks, indicating in
detail how the said oil is dealt with after import. It shall also be clarified
in the affidavit whether such oil can, in the perception of the Central
Government, be imported or it is only a technical import at the time of
discharge of oil as suggested in the affidavit of Mr.M. Subba Rao, dated 14th
February, 2003. This aspect including case of import by Daya Lubricant would be
considered after filing of affidavit by the Central Government.
70. In the above background, in addition to directions as aforenoticed, for
the present, we issue the following further directions:-
70.1. SPCB:
(1) We direct all SPCBs/PCCS to implement the directions that may be issued
by the Ministry of Environment and Forests (MoEF).
The SPCBs are directed to produce a comprehensive report on illegal
hazardous waste dump sites in their jurisdiction. Reports should be based on
inspection, assessment of the size of the dump site; age; whether the dump site
is passive or active; whether any precautions have been taken to prevent damage
to the environment. The SPCB will also take sampls of the groundwater in the
vicinity of the dump site at different point an prepare a report on
contamination of the groundwater, if any, and if so, to what extent.
The SPCBs are directed to draw up a plan with financial estimates for
immediate measures that may be required to stop environmental damage. A full
scale rehabilitation plan should also be prepared, together with detailed
estimate of costs. All these reports will be sent to the CPCB.
70.2. (2) Ship Breaking:-
We accept the following recommendations of HPC:
“1. Before a ship arrives at port, it should have proper consent from the
concerned authority or the State Maritime Board, stating that it does not
contain any hazardous waste or radioactive substances. AERE should be consulted
in the matter in appropriate cases.
2. The ship should be properly decontaminated by the ship owner prior to
the breaking. This should be ensured by the SPCBs.
3. Waste generated by the ship breaking process should be classified into
hazardous and non-hazardous categories, and their quantify should be made known
to the concerned authority or the State Maritime Board.
4. Disposal of waste material, viz. Oil, cotton, dead cargo of inorganic
material like hydrated/solidified elements, thermocol pieces, glass wool,
rubber, broken tiles, etc. should be done in a proper manner, utilising
technologies that meet the criteria of an effective destruction efficiently of
99.9 per cent, with no generation of persistent organic pollutants, and complete
containment of all gaseous, liquid and solid residues for analysis and, if
needed, reprocessing. Such disposed of material should be kept at a specified
placed earmarked for this purpose. Special care must be taken in the handling of
asbestos wastes, and total quantities of such waste should be made known to the
concerned authorities. The Gujarat Pollution Control Board should authorise
appropriate final disposal of asbestos waste.
5. The ship breaking industries should be given authorisation under Rule 5
of the H.W. Rules, 2003, only if they have provisions for disposal of the waste
in environmentally sound manner. All authorizations should be renewed only if an
industry has facilities for disposal of waste in environmentally sound manner.
6. The State Maritime Board should insist that all quantities of waste oil,
sludge and other similar mineral oils and paints chips are carefully removed
from the ship and taken immediately to areas outside the beach, for safe
disposal.
7. There should be immediate ban of burning of any material whether
hazardous or non hazardous on the beach.
8. The State Pollution Control Board (of Gujarat and other coastal States
where this ship breaking activity is done) be directed to close all units which
are not authorized under the HW Rules.
9. That the plots where no activities are being currently conducted should
not be allowed to commence any fresh ship breaking activity unless they have
necessary authorization.
10. The Gujarat PCBs should ensure continuous monitoring of ambient air and
noise level as per the standards fixed. The Gujarat PCBs be further directed to
install proper equipment and infrastructure for analysis to enable it to conduct
first level inspection of hazardous material, radio-active substances (wherever
applicable). AER shall be consulted in such cases.
11. The Gujarat SPCB will ensure compliance of the new Gujarat Maritime
Board (Prevention of Fire & Accidents for Safety & Welfare of Workers and
Protection of Environment during Ship breaking Activities) Regulations, 2000, by
Gujarat Maritime Board and should submit a compliance report to the Court within
one year of the coming into force of the said regulations.
12. The Notification issued by GMB in 2001 on Gas Free for Hot Work, should
be made mandatory and no ship should be given a beaching permission unless this
certificates is shown. Any explosion irrespective of the possession of
certification should be dealt sternly and the license of the plot holder should
be cancelled and Explosives inspector should be prosecuted accordingly for
giving false certificate.
13. A complete inventory of hazardous waste on board of ship should be made
mandatory for the ship owner. And not breaking permission should be granted
without such an inventory. This inventory should also be submitted by the GMB to
concerned SPCBs to ensure safe disposal of hazardous and toxics waste.
14. Gujarat Maritime Board and Gujarat SPCB officers should visit sites at
regular intervals so that the plot owner know that these institutions are
serious about improvement in operational standards. An 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 organizations and representatives of the ship breaking
industry.
15. The SPCBs along with the State Maritime Board should prepare land fill
sites and incinerators as per the CPCB guidelines and only after prior approval
of the CPCB. This action should be taken in a time bound manner. The maximum
time allowed should be one year.
16. 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.
17. The continuation or expansion of the Alang ship breaking operations
should be permitted subject to compliance with the above recommendations by the
plot holders.
18. That the above conditions also apply to other ship breaking activities
in other Coastal States.
70.3. (3) Inventory:-
We direct that toxic inventory prepared by SPCBs regarding the generation
of hazardous wastes, after its verification by CPCB shall be filed in this Court
within 4 months so that order for its conversion into National Toxic Inventory
can be passed.
70.4. (4) Dump sites:-
The Toxic inventory with regard to hazardous waste dump sites in different
States should be prepared by SPCBs and after verification by CPCB, shall be
filed in this Court within 4 months so that the orders can be passed on the same
being treated as Authenticated National Inventory on hazardous waste dump site.
70.5. (5) National Inventory:-
National inventory shall also be prepared by CPCB for rehabilitation of
hazardous waste dump sites. The SPCBs are directed to ensure that all parties
involved in hazardous chemicals and generating hazardous wastes display on line
date outside the factory at the pattern of Andhra Pradesh.
70.6. (6) Bank Guarantee in Import of certain Items:-
MoEF should consider making a provision for bank guarantee being given by
importer while seeking permission to import used oil, furnace oil and zinc
wastes to be released only on the imported consignment being found to be in
conformity with the declared item of import. After taking a decision, affidavit
shall be filed within 4 weeks.
70.7. (7) Legislation:-
Under Article 9 the HPC has recommended that in order to deter any
transboundary movement of hazardous wastes or other wastes, i.e. illegal
traffic, the national/domestic legislation shall be enacted/amended
appropriately to prevent and punish illegal traffic. The Government is directed
to examine this aspect and file a report.
70.8. (8) Steps before clearance:-
Before clearance of any hazardous wastes imported to India the Port and
Customs authorities would ensure that the consignment in question corresponds
with the details of authenticated copy of Form 7 sent by the country of export.
70.9. (9) CPCB’s Role:-
CPCB, for a period of two year, would be empowered to monitor the import of
hazardous waste, which means, it would be empowered to undertake random check
from time to time as a safeguard.
The CPCB will collate the data from the SPCBs directly from each SPCB,
and will randomly cross-check the data upto 10% of the units, prior to preparing
the National Inventory. In its report, the CPCB will also discuss any problems
in the making of the inventory and particulars/details of any SPCB that has not
cooperated with the Inventory.
The CPCB be directed to repeat the procedure (set out for inventory of
hazardous wastes) for listing of illegal hazardous waste dump sites in the
country.
The CPCB is directed to study the SPCB reports, make an evaluation of
the proposals, countercheck the data generated in the reports, and produce a
National Plan for Rehabilitation of Hazardous Waste Dump Sites. Such a Plan
should be submitted to the Court within 4 months.
70.10. (10) Testing:-
The testing procedure and criteria evolved or which may be evolved by CPCB
shall be followed by the concerned laboratories.
70.11. (11) Publication of Toxic Inventory & Community Participation:-
SPCBs take steps to ensure that relevant important information on Hazardous
Wastes should be displayed on notice boards and newspaper and communicated
through radio, television and the Internet. SPCBs should ensure that all
industries involved in hazardous chemicals and generating hazardous wastes
display online data outside the main factory gate, on quantity and nature of
hazardous chemicals being used in the plant, water and air emissions and solid
wastes generated within the factory premises. If such data is not made
available, the unit should be asked to show cause or even be asked to close
down.
70.12. (12) RE: Location of Industrial Sites and Secured Landfills:-
The MoEF would consider the suggestion of HPC regarding development of
National Policy for landfill sites. The suggestion is to the following effect:
“In industrialised countries, the selection of sites for disposal facilities
lies with the Government. In view of this, a national policy needs to be
developed for locating such centralised/common TSDFs. The location of final
disposal facilities should be based on the total quantity of hazardous waste
generated in the individual State. For effective monitoring and an economically
viable facility, it is important to locate a centralised facility within a
distance of about 100 km. of the waste-generating units. Those States which
generate less than 20,000 tonnes per year of hazardous waste may be permitted to
have only temporary storage facilities and then transfer the waste to the final
treatment and disposal facilities in the nearby State. It is not necessary and
also not advisable to develop a facility in each and every district and/or State
as land is a valuable natural resources.”
They would also keep in view the suggestion of the areas which may be
excluded from locating the landfill sites.
70.13. (13) RE: National Policy Document on Hazardous Wastes:-
MoEF is directed to either itself or through the CPCB or any other agency
draft a policy document on hazardous waste generation and its handling within
the country. While examining this aspect the following recommendations of the
HPC would be kept in view:
“The policy document should emphasise a commitment to the recycling of wastes
an materials, and propose incentives for encouraging and supporting recycling.
Industries must be given a clear message that they must show concrete and
tangible results as far as prevention and reduction of wastes are concerned. If
they do not, they should be made to pay a waste generation tax. The policy
document should enunciate a doctrine of partnership between SPCBs, entrepreneur
and other stakeholder like the community, which will involve working together on
monitoring, preventing and reducing hazardous waste generation. The policy
should review further growth of non-ferrous metallic waste, waste oil and used
lead acid battery recycling in the SSI sector.”
MoEF and Health Ministry shall examine and respond to the recommendations
of HPC which read:-
“MoEF and Ministry of Health to compile an extensive data regarding
exposure and epidemiological studies. They should also conduct a comprehensive
research programme to determine the effect of hormonally effective synthetic
chemicals. Directions may also be issued for centres of excellence for
environmental health science and for existing institutes engaged in related
activities. A network of R&D institutions, medical colleges and universities may
also be created. MoEF should encourage the industries and their associations to
participate in research activities concerning environmental health. These
studies should be made public so that people can know about toxicity and its
impact. A cess can be levied on the industries dealing with H.W., which should
be specifically earmarked for promotion of R & D."
71. In the aforesaid order, wherever time frame for taking action has not
been fixed the action shall be taken as per the schedule hereunder:
Sl.No. Activity Time Frame Agency
1. Proposed change in the HW Rules, 1989 as amended in 2003 4 months for
compliance MoEF
2. Review of list “A” Schedule VIII Items in BASEL Convention other than 29
banned items already include in the HW Rules, 2003 4 Months for
compliance MoEF
3. Review of waste materials like used edible oil, cow dung, plastic scrap,
used PVC in any form, PET bottles etc. which are required to be banned. 4
Months for compliance MoEF
4. Directions regarding compliance of Recycled Plastics, Manufacture and
Usage Rules, 1999 and the Batteries (Management and Handling) Rules, 2001 4
weeks MoEF
5. Directions to be issued regarding collection and transportation of used
oil from different sources to be sold and recycled by registered refiners with
requisite undertaking from refiners 4 weeks MoEF/CPCB
6. Closure directions to the units operating without any authorisation or in
violation of conditions of operations issued under HW Rules, 1989 as
amended. 3 weeks SPCBs/PCCs
7. Directions to SPCBs/PCCs bringing to their notice the latest cleaner
technology and requiring the said Boards/Committees to ensure compliance thereof
by concerned units within the fixed time frame. 3 months CPCB
8. Preparation and issuance of check-list and ensuring its compliance by
SPCBs/PCCs. 3 months CPCB
9. Transportation of HWs (Preparation of Guidelines) 3 weeks CPCB
10. Amendment in the Rules incorporating the principles of Article 9 of the
BASEL Convention-Affidavit to be filed 4 Months MoEF
11. Upgradation of Laboratories at Port/Docks/ICDs(Gateways) 12 months
with quarterly reports MoEF/Nodal Ministries
12. Uniform Testing Procedure to be followed by the labs. 6 weeks CPCB
13. Direction regarding display of relevant information on HW by concerned
units. 4 weeks SPCBs/PCCs
14. Awareness Programme in Media regarding HWs 8 weeks MoEF/CPCB
15. Preparation of State/UT Inventories re. HW generation by SPCBs/PCCs 3
months SPCBs/PCCs
16. Random check-up of the inventories by CPCB. 4 months CPCB
17. Submission of the State/UT Inventories regarding HW generation before
this Hon’ble Court for preparation of National Inventory. 5 months CPCB/SPCBs/PCCs
18. Preparation of States/UT Inventories regarding Waste Dump Sites and
Rehabilitation Plan. 3 Months SPCBs/PCCs
19. Cross check by the CPCB and evaluation of the Rehabilitation Plan 4
months CPCB
20. Submission of the said Inventory and Rehabilitation Plan before this
Hon’ble Court 5 months CPCB/SPCBs/PCCs
21. Preparation and publication of National Inventory of HW generation and
HW Dump Sites 7 months MoEF/CPCB
22. Fixing time frame for implementation of Rehabilitation Plan by SPCBs/PCCs 3
months SPCBs/PCCs
23. National policy for landfill sites 4 months MoEF/CPCB
24. Guidelines for proper functioning and upkeep of disposal sites. 3
months CPCB
25. Guidelines of HW Incinerators. 8 weeks MoEF./CPCB
26. Institutional ReformsMoEF/CPCB/SPCBs/PCCs 3 months MoEF/Nodal
Ministries
27. National Policy Document on HW 9 months MoEF/CPCB
28. CPCB to do research and take up the matter with MoEF for requisite
regulatory measures in regard to import of dirty technologies in industries –
steps to be taken 3 months MoEF/CPCB
29. Various directions with regard to ship-breaking 1 month MoEF/State
Maritime Boards/SPCBs
With the aforesaid directions the matters are adjourned.
Sd/-
(Y.K. Sabharwal
New Delhi Sd/-
October 14, 2003 (B.N. Agrawal)