Sunday, 27 May 2012

Hazar­dous waste­ manag­ement­ & trade­ viola­te

Subor­dinat­e legislation for hazar­dous waste­ manag­ement­ & trade­ viola­te Basel­ Conve­ntion­ witho­ut legis­lativ­e manda­te
Shri P. Karunakaran,
Parliamentary Standing Committee (PSC) on Subordinate Legislation
Parliament of India
New Delhi

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

Subject- Subordinate legislations for hazardous waste management and
trade under Environment Protection Act, 1986 violate Basel Convention
without legislative mandate


This is with reference to the subordinate legislations for Hazardous
Waste Management and Trade under Environment Protection Act, 1986, the
reply of Smt Jayanthi Natarajan, Union Minister of Environment and
Forests in the Lok Sabha on May 21, 2012 and Supreme CourtⳠorder
dated October 14, 2003 and February 29, 2012.

Union Minister of Environment and Forests said, "Import of such
(hazardous) wastes for disposal is not permitted. Import is permitted
only for recycling or recovery or reuse with the permission of the
Ministry of Environment and Forests and/or Directorate General of
Foreign Trade", Union Commerce Ministry.

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

I submit that the trend revealed in PSCⳠreport on
㎯n-implementation of oft-repeated recommendations of Committee on
Subordinate Legislation, Lok Sabha by various Ministries䠤ated
December 16, 2011 is being pursued even by Union Ministry of
Environment & Forests in the matter of subordinate legislations for
Hazardous Waste Management and Trade under Environment Protection Act,
1986. This is being done at the behest of Union Ministry of Commerce
and Industry.

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

I wish to draw your attention towards the first three paragraphs of
Supreme CourtⳠlandmark order dated October 14, 2003. It reads:
ሡzardous 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: 㴯 minimize the generation of hazardous
wastes in terms of quantity and hazardousness; to dispose of them as
close to the source of generation as possible; to reduce the
transboundary movement of hazardous wastes.伢r> 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
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.⼢r>
I submit that in a order dated February 29, 2012, Supreme Court held
that the application which 㨡s been filed by Dr. Claude Alvares,
member of the Supreme Court Monitoring Committee, praying for an
injunction to restrain Union of India from finalising of a
Notification on hazardous wastes dated 28th September, 2007, has been
rendered infructuous on account of the publication of the Hazardous
Wastes (Management, Handling & Transboundary Movement) Rules, 2008. It
appears that the prayer of Dr.Claude Alvares, a member of the SCMC did
not get relief due to limitations of jurisdiction of the Supreme

I take this opportunity to pray to PSC on Subordinate Legislation 㦯r
an injunction to restrain Union of India䠯r any other possible relief
through its examination of the Notification on hazardous wastes dated
28th September, 2007, which has been published as Hazardous Wastes
(Management, Handling & Transboundary Movement) Rules, 2008,
subsequent four amendments in the Rules, proposed fifth amendment in
the Rules and the ᐲocedure for grant of approval for utilization of
hazardous wastes as a supplementary resource or for energy recovery,
or after processing under Rule 11 of Hazardous Wastes Management
Rules, 2008⮠The original Notification is attached.

I submit that both the current members of SCMC who were also the
members of Supreme CourtⳠHigh Powered Committee on Hazardous Wastes
Management headed by Prof M G K Menon namely,Dr.Claude Alvares and
Dr.D.B. Boralkar should be invited by the PSC to hear their
testimonies. Prof. Menon should also be invited besides Shri Sanjay
Parikh, lawyer Supreme Court who has been pursuing the case selflessly
since 1995. They can reveal the plot being set by hazardous waste

I submit that in our country all the municipal waste to energy plants
have failed. The proposal of the hazardous waste to energy projects
through the procedure for grant of approval for utilization of
hazardous wastes as a supplementary resource or for energy recovery,
or after processing under Rule 11 of Hazardous Wastes Management
Rules, 2008 has not been examined as far as their adverse
environmental health impact is concerned. This is unfolding under
illegitimate acts of subordinate legislation.

I submit that the intent of the Commerce and Environment Ministry
stood exposed when it proposed an amendment to the Hazardous Wastes
(Management & Handling) Rules; after amendment it was to read
"Hazardous Materials (Management, Handling and Transboundary Movement)
Rules, 2007. The proposed rules was to have the effect of exempting
transit countries from obtaining prior informed consent for all
shipments of hazardous waste to India. The proposal also stated that
as long as a material contains less than 60 per cent contamination by
a hazardous constituent, then it is safe for our ecology. Waste
asbestos embedded in the structure of the scrap material is not
banned.  This sleight of hand at redefinition attracted widespread
criticism from environment and public health groups. Startled by the
proposed Rules environment and public health researchers and activists
had charged that it has been done at the behest of hazardous waste
traders. Even the Confederation of Indian Industry (CII) had expressed
its concerns in November 2007. The SCMC on Hazardous Wastes had also
objected. As a consequence the word "wastes" was not replaced with
"materials" but "Transboundary Movement" remains. In effect, the
original Rules were mutilated and the process of mutilating it further
is underway.

I submit that through a jugglery of words in the subordinate
legislations on hazardous wastes, Union Ministries of Commerce and
Environment have paved the way for officially opening floodgates for
the dumping of world's hazardous waste in the name of recycling. This
has unleashed unprecedented havoc on India's environment and health of
its citizens. These subordinate legislations on hazardous wastes seeks
to undo established, science-based definitions of waste and consider
waste that is being recycled somehow less hazardous than the waste
being landfilled in order to curry favor with hazardous scrapping

I submit that through a not-so-subtle mangling of international
definitions for "waste", "disposal" and "safe recycling" both these
ministries have designed a veritable global waste funnel that will
ensure that the world's waste will surge to our shores. All this is
being done in the name of recycling.

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

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

I submit following examples of departures from the Basel Convention
and international law:
妮bsp;  India has decided that transit states do not have to receive prior
informed consent for all shipments of hazardous waste.
妮bsp;   India has decided that dumping in rivers, oceans, and lakes, or
burning waste somehow does not constitute disposal and therefore that
which is dumped in aquatic environments, or burned, is not waste.
妮bsp;  The international definition of "environmentally sound management"
has been ignored in favor of a new definition of "safe for recycling"
that states that as long as a material contains less than 60%
contamination by a hazardous constituent, then itⳠsafe!
妮bsp;   India has exempted bio-medical wastes and municipal wastes from
this law yet these are meant to be covered under Basel.
妮bsp;  India appears to allow dioxin imports for disposal but not for recycling.
妮bsp;  Waste asbestos imports are banned unless they are contaminating
other substances (e.g. old ships).
妮bsp;  Fails to implement the Ban Amendment forbidding all imports of
hazardous waste from developed countries.
妮bsp;  Fails to recognize it is illegal to trade in waste with non-Parties
of the Basel Convention such as the United States.
妮bsp;  While since 1982 over 5924 dead and hazardous wastes laden ships
have been dumped in Indian waters, the Hazardous Wastes Management
(Handling & Transboundary Movement Rules, 2008) provides that the
Rules will not apply to 㷡stes arising out of the operation from
ships beyond five kilometers of the relevant baseline as covered under
the provisions of the Merchant Shipping Act, 1958 and rules made there
under䮠Subordinate legislations under Merchant Shipping Act, 1958
also merit attention

I submit that it is contrary to our constitution because the State is
under obligation to protect people's right to health and environment),
instead of an environmental law being protective of human health and
the environment, these subordinate legislations are trade centric for
hazardous waste.

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

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

I submit that the Ministry appears to have done its homework to
justify hazardous waste trade in various disguises. Under Rule 23 of
Hazardous Wastes (Management, Handling and Transboundary Movement)
Third Amendment Rules, 2008 refers to the 㒥sponsibilities of
Authorities䠷hich is specified in its Schedule VII that provides the
List of Authorities and Corresponding Duties䠷herein it is mentioned
that Directorate-General of Foreign Trade constituted under the
Foreign Trade (Development and Regulation) Act, 1992 has a duty to
ㇲant License for import of hazardous wastes䮼br>
It is noteworthy that since 1989 till 2012, there have been several
amendments to the Rules.  Interestingly, the new 7 page Draft
Hazardous Wastes (Management, Handling and Transboundary Movement)
Fifth Amendment Rules, 2011 engineers these Rules and inserts a new
definition of waste. It reads: "㨺ea) 㷡ste䠭eans materials, that
are not products or by-products, for which the generator has no
further use in terms of his/her own purposes or for production,
transformation or consumption, and of which he/she wants to dispose."
Its Explanation1 reads: "Wastes may be generated during the extraction
of raw materials, the processing of raw materials into intermediates
and final products, the consumption of final products, and through
other human activities. Residuals recycled or reused at the place of
generation as a part of process are excluded." Its Explanation 2
reads: "By-product means a material that is not solely or separately
produced by the production process but gets produced in the process
and is used as such." I hold that the amendments are being done under
undue influence of the global hazardous waste traders. The new Draft
Rule is attached.

I submit that the subordinate legislation with regard to Hazardous
Wastes (Management, Handling and Transboundary Movement) Rules, 2008
are contrary to the orders issued by the Supreme Court. The order
dated 14th October, 2003 endorsed UNⳠBasel Convention. The new
notification is in contempt of the Court and violates the spirit of
the Basel treaty by allowing traders to deal with hazardous wastes who
are endangering public and ecological health. It is indeed strange
that while the Environment Ministry admits that there is huge deficit
of capacity to deal with hazardous wastes generated in the country,
the new Hazardous Waste Rules, Amendments and Procedures permit
traders to import hazardous wastes.

I wish to inform you that the Supreme Court Monitoring Committee
(SCMC) on Hazardous Wastes members opines that "Truly, we take three
steps forward and then five steps backward." The attached court⳼br> order that constituted the SCMC saying 㗥 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.䠦nbsp;I submit that Union Ministry of Environment & Forests
has ignored the recommendations of both the court appointed members.

I submit that as per a 54 page Report of the Committee to Evolve Road
Map on Management of Wastes in India, Union Ministry of Environment &
Forests there are about 36,000 hazardous waste generating industries
in India which generate 6.2 million tonnes out of which land fillable
hazardous waste is about 2.7 million tonnes (44%), incinerable
hazardous waste is about 0.4 million tonnes (7 %) and recyclable
hazardous waste is about 3.1 million tonnes (49 %). Indiscriminate and
unscientific disposal of wastes in the past has resulted in several
sites in the country to become environmentally degraded. Isn't our own
hazardous waste sufficient?

I submit that "141 hazardous waste dumpsites that have been primarily
identified in 14 States/UTs out of which 88 critically polluted
locations are currently identified" which in effect means that there
no capacity to deal with these wastes. If they are unable to deal with
the domestically generated waste in a scientific and environmentally
sound manner and are compel them to dump them, how can Environment
Ministry's reply  to the Parliament that implies that India has the
capacity to deal with the imported hazardous waste for any purpose be
deemed convincing.

I submit that it has come to light from the Minister's statement that
a co-ordination committee comprising of representatives from the
Ministry of Finance, the Ministry of Commerce and Industries, the
Ministry of Shipping, Central Pollution Control Board and select State
Pollution Control Boards has been constituted that claims to be
"working to sensitize the Customs authorities regarding enforcement of
these Rules in order to check illegal import of hazardous waste into
the country." It appears that through linguistic manipulation waste is
been re-defined as non-waste. What has become evident is that Indian
regulations offer least resistance to dumping of hazardous wastes. In
fact it welcomes hazardous wastes trade in the name of "recycling or
recovery or reuse" of hazardous wastes.

I submit that as a consequence hazardous waste importers are bringing
in lakhs of tonnes of hazardous waste into India without facing any
legal hurdle. Earlier, Environment MinistryⳠHazardous Waste Rules
prohibited import of waste oil, ash and residues from incineration of
municipal solid waste, plastic, and unsorted waste scrap. But the same
was allowed under the Open General License of the export-import policy
of the Commerce Ministry. This led to import of ash and residues from
incineration of municipal solid waste has increased by about 130 times
during 2006-2009. The import of plastic waste increased by seven times
during this period. Countries such as Netherlands, Germany and the
United Kingdom have realized that Indian regulations are hazardous
waste friendly. There was a 48 per cent increase in hazardous waste
trade import during 2006-2009.

I submit that acknowledging such a situation, the then Union
Environment and Forest Minister had written a letter to Union Commerce
Minister in April 2010 urging alignment of Hazardous Waste Rules and
Export-Import policy to reduce 㳣ope of confusion䠡t implementation
level. ㉠suggest that a joint group of the two ministries be set up
to resolve the issue䬠the minister said and had further added that
some export-oriented units especially those in the Special Economic
Zones (SEZ) were importing hazardous waste without seeking approval
from either the Ministries. They were also operating without a
mandatory 㣯nsent to operate䠵nder environmental laws aimed at
protecting the environment. The minister had said, の impression also
seems to have gained ground that such units are exempt from the
provisions of environment regulations can import hazardous wastes
without any permission. These impressions need to be corrected䮠What
has happened since then is that instead of aligning and factoring in
environmental concerns in the hazardous waste trade, blind
profiteering has taken precedence over public health concerns. The
Hazardous Wastes Rules do not apply to SEZ.  PSC should demand that
the names of SEZs which are importing hazardous wastes must be

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

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

Thanking You

Yours faithfully
Gopal Krishna
ToxicsWatch Alliance (TWA)
New Delhi
Mb- 9818089660

Shri P. Karunakaran, Chairman, PSC on Subordinate Legislation
Shri Sitaram Yechury, Chairman, PSC on Transport, Culture & Tourism
Hon⢬e Members of PSC on Subordinate Legislation
Shri Ghanshyam Anuragi,
Shri Praveen Singh Aron,
Shri Kalyan Banerjee
Shri E. T. Mohammed Basheer
Shri Ramen Deka
Dr. Mahesh Joshi
Shri Virender Kashyap
Shri Jitender Singh Malik
Dr. Thokchom Meinya
Smt. Mausam Noor
Shri Gajendra Singh Rajukhedi
Dr. Bhola Singh
Shri Vijay Bahadu Singh
Shri A.K.S Vijayan
Prof. M G K Menon, former Chairman, High Powered Committee on Hazardous Wastes
Hon⢬e Members of Supreme Court Monitoring Committee on Hazardous Wastes
Dr Claude Alvares
Dr D B Boralkar
Shri Sanjay Parikh, Lawyer, Supreme Court

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