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2003 (10) TMI 684

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..... us 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 Articles 14 and 21 of the Constitution. 3. The petitioner has, inter alia, relied upon the Basel Convention. The Basel Convention was signed by India on 15-3-1990 and ratified on 24-6-1992. 4. From time to time various affidavits have been filed in this matter by the Ministry of Environment and Forests (for short MOEF) and the 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 the Hazardous Wastes (Management and Handling) Rules, 1989 (for short the HW 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 23-5-2003. 5. Considering the magnitude of the problem and the extent of .....

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..... o handle the issue. One of such elementary aspects 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 4-8-1997 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 in spite of considerable time having been given. It has been further observed that all the authorities do not appear to appreciate the gravity of the situation and need for prompt measures being taken to prevent serious adverse consequences. Even the Central Government was not given full information by all the State Governments about the compliance with the directions of this Court. Under these circumstances, it was observed that an appropriate Committee deserves to be constituted to ensure that the needful is done to arrest further growth o .....

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..... by the State Boards for handling hazardous wastes are in accordance with Rule 5(4) and Rule 11 of the Hazardous Wastes 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 areawise 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 asp .....

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..... sis 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 the Organisation for Economic Cooperation and Development (OECD) to non-OECD countries immediately for disposal and in the beginning of the year 1998 for recycling is, therefore, required to be kept in view while considering the number of items to be banned. It also deserves to be noticed that having regard to the broad outlook in framing the terms of reference including therein not only the aspect of imported hazardous wastes but also management of indigenous hazardous waste, HPC has rightly not confined itself just to the crisis situation that has arisen from continuous illegal import and dumping of hazardous wastes, but has 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 are far more serious and of far greater magnitude than tho .....

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..... 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 statutes 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 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 v. Prof. M.V Nayudu 1999 2 SCC 718 where, after referring to the principles noticed in Vellore Citizens' Welfare Forum 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, .....

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..... e (3) of Rule 12 of the Hazardous Wastes 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: 3. (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 Rules 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; In the notification dated 23-5-2003, there is no Rule 12(a). The apprehension expressed is that Rule 12(3) on account of its ambiguity may be abused and under the 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 ne .....

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..... urt detailing the progress made, the labs as suggested should be upgraded and manned by 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. CPCB, Mr Panjwani states, is imparting periodical training to customs and port officials, the document prepared by Dr. K.R 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. 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. The import of 29 items has already been prohibited under Schedule 8 of the Hazardous Wastes Rules as amended in May 2003. We see no reason why notificat .....

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..... ll be taken to expedite the completion of the remaining landfills. In this view, steps should be taken for 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. Monitoring 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. Re: Impact of hazardous waste on workers' health We have considered the suggestion of HPC under term of reference (4) relating to impact of hazardous waste on workers' 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 exa .....

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..... make payment of compensation on polluter-pays principles and other action taken against them. We direct the Ministry of Environment and Forests to serve notices to the 15 importers as also the Commissioner of Customs concerned. The Ministry would be empowered to have assistance from the police/District Magistrate/Metropolitan Magistrate for effecting service of notice on the importers. We direct these authorities to render all possible assistance in this regard. Dasti notices to be given. 18. The importers and the Commissioner of Customs have been given time to file affidavits and on consideration thereof appropriate directions would be issued. 19. The Basel Convention, which we have noticed hereinbefore has banned import of 76 items. The HW 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 the High-Powered Committee (HPC) was submitted nearly 2-1/2 years ago. Considering the magnitude of the problem MOEF should have bestowed more serious consideration that it has on these matters and taken appropriate steps. 20. In Chapter 5 .....

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..... all those who carry responsibilities that are connected with the environment, but only to highlight the major ones. 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 the Government about the serious implications of the import, generation, build up, transport and disposal of hazardous wastes in the country. 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 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 .....

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..... ith 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 MOEF is small, particularly noting that it was set up as a scientific department, and further, that HSMD is even smaller, and the resources made available cannot be fully utilised, 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 (sic) though relating to promotional approaches, complacency, and finally, lack of focus on implementation. HPC believes that the principal role and responsibility of 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 .....

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..... ng 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. MOEF will clearly be the focal point in the Government of India with regard to the international issues that arise in this area. 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. MOEF must ensure that adequate facilities are available at the gateway points in the country (e.g ports, ICDs, customs areas) to mak .....

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..... t. 23. Next we consider the aspect of units that are operating without any authorisation or in violation of the conditions of authorisation issued under the HW 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).] The State Pollution Control Boards and the Pollution Control Committees are directed to close forthwith such units. 24. On the aforesaid aspect, one of the directions sought for by the petitioner is also that the authorisation 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 or disposal is the most practicable method currently available to them which minimises the present and future threat to human health and environment. By the Hazardous Wastes (Management and Handling) Amendment Rules, 2003 Rule 21 in respect of environmentally sound technologies and standards for re-refining or recycling has .....

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..... s 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 (12), in particular, the suggestions as contained at Serial Nos. (3), (4), (6) and (7). 27. HPC has found hazardous waste dumped in the open and has stated that: 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 groundwater, creating drought-like situations in areas traditionally not lacking in water supplies. Public hearings conducted by 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. 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 .....

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..... e 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. 33. Having regard to the 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 officer/officers of the department concerned responsible therein and, if necessary, a specific provision to that effect can be incorporated in the Rules, wherever needed. 34. In respect of collection and transportation of used oil from different sources, authorities shall ensure that the same is sold to registered refiners or recyclers and they give an undertaking to refine or recycle in terms of the Rules. 35. Reverting now to the issue of incinerators it is to be kept in view, as observed by HPC that incineration is the most important treatment method for the destruction of all high calorific and highly toxic wastes. High temperature incineration at 12,000 degrees Celsius mineralises (breaks down into basic non-toxic c .....

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..... 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. 39. 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 transboundary environment effect and shall consult with those States at an early stage and in good faith. 40. The report has emphasised 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, the 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 the Andhra Pradesh Pollution Control Board which decided that all in .....

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..... ticipation by formulating the necessary programmes. 43. Another aspect which deserves to be noticed is about the effect of ship-breaking activity covered by TOR (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 authorities concerned have to be vigilant about the hazardous waste which may be generated if appropriate timely action by various agencies, in particular, the Maritime Board and SPCB are not taken. The major ship-breaking activity in India is at Alang in the State of Gujarat and, therefore, the 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 recommendations of HPC, the 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 organisations and representatives of the ship-breaking industries. 44. The ship-breaking operation referred to above cannot be permitted to be continued without strict .....

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..... ner in which this stock be cleared from the respective ports/ICDs/CFSs. Such stocks can again be divided into two categories; one, the category in respect whereof the import is banned under the HW Rules, as amended up to date or falling under a banned category in terms of the Basel Convention. Reference in this regard be also made to the order of this Court dated 5-5-1997 referred to hereinbefore. Out of the various consignments lying at the aforesaid places, the consignments under this category shall have to be treated differently. Such consignments have either to be re-exported, 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. 49. 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 t .....

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..... 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. 54. In regard to import of sludge oil under the Marpol Convention, we direct the 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 14-2-2003. This aspect including case of import by Daya Lubricant would be considered after filing of affidavit by the Central Government. 55. In the above background, in addition to directions as aforenoticed, for the present, we issue the following further directions: (1) SPCB We .....

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..... reaking industries should be given authorisation under Rule 5 of the HW Rules, 2003, only if they have provisions for disposal of the waste in environmentally sound manner. All authorisations 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 paint 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 authorised 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 authorisation. (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 .....

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..... pation 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. (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. (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 sites. (5) National inventory National inventory shall also be prepared by CPCB for rehabilitation of hazardous waste dump sites. SPCBs are directed to ensure that all parties involved in hazardous chemicals and generating hazardous wastes display online data outside the factory on the pattern o .....

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..... ved 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. (12) Re: Location of industrial sites and secured landfills 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 final 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 on .....

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..... r taking action has not been fixed the action shall be taken as per the schedule hereunder: S. No. Activity Time-frame Agency 1 Proposed changes 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 included 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 with the 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 refineries. 4 weeks MOEF/ CPCB 6 Closure directions to the units operating without any authorisation or in violation of conditions of operations issued under the HW Rules, 1989 as amended. 3 weeks SPCBs/ PCCs 7 Directions to SPCBs/PCCs bringing to their notice the latest cleaner technology and requiring .....

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