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2003 (10) TMI 684

..... re. Industrialisation 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 requires 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 the Basel Convention. The key objectives of the Basel Convention are: to minimise 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. 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 Consti .....

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..... ules were amended with effect from 6-6-2000 and further amended on 23-5-2003. 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 the HW 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 19-10-1995 till date, to various affidavits that have been filed on behalf of MOEF, the 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 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 .....

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..... ng 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 authorisations/permissions given 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 areawis .....

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..... ur gratitude for the efforts made and dedication shown by HPC in preparation of the report and recommendations made therein after in-depth 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 para 1.3 relating to scope of work. Out of the fourteen terms of reference, on TOR (13) the High-Powered Committee submitted its report on 20-4-1998, on consideration whereof, directions were issued in terms of the order dated 10-12-1999. 13. The ratification of the 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 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, requir .....

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..... s 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 takes place and effective measures are taken. 15. First, the legal principles in brief may be noticed. 16. 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 v. Union of India 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 now 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 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& .....

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..... which flows from Article 21. The Government and authorities have, thus to motivate the public participation. These well-enshrined principles have been kept in view by us while examining and determining various aspects and facets of the problems in issue and the permissible remedies. 17. 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 23-9-2003, 24-9-2003 and 25-9-2003, may be reproduced as under: Order/directions dated 23-9-2003 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 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 .....

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..... al 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 the Ministry of Environment and Forests and affidavit filed within 8 weeks. Order/directions dated 24-9-2003 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 A.D.N 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 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 periodic .....

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..... the prevalent exim policy. For design and setting up of disposal facility as provided in rule 8-a of the hw (m&h) rules, the Criteria for Hazardous Waste Landfills published by CPCB in February 2001 and the Manual for Design, Construction and Quality Control of Liners and Covers for Hazardous Waste Landfills published in December 2002 shall be followed and adhered to. Along with the affidavit of Mr M. Subba Rao, filed on 13-9-2003, 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 A.D.N 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 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 gui .....

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..... ppear 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 the 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 Commissioner of Customs concerned. 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 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 .....

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..... vy 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 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 grassroot 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. 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, unsatisfactoril .....

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..... vision has an allotment of only 6 scientists. The Ministry of Environment and Forests has a total annual plan budget of ₹ 765 crores (₹ 432 crores for environment and ₹ 333 crores for forests) and a non-plan budget of ₹ 115 crores (₹ 81 crores for environment and ₹ 34 crores for forests) for the year 2000-2001. HPC was told that the HSM Division is allocated approximately ₹ 3.6 crores (of the plan budget). However, from the 53rd Report on the Demands for Grants (1998-99) presented in the Rajya Sabha, HPC noted that out of the sum of ₹ 4 crores allocated to the HSM Division in that year, actual expenditure was only ₹ 2.74 crores and the rest was surrendered. Yearwise budget allocations of 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 .....

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..... 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. HPC has dealt with the importance of research and development in this area at another place in this report. 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 is well recognised. GDP growth, industrialisation, energy production, exports are all part of this. However, this cannot be at the cost of the 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 responsi .....

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..... the cost of weakening the other divisions. 22. Reverting to the question of ban on the lines of the Basel Convention, while examining the question of placing a ban on other items in addition to 29 items, MOEF will take into consideration what has been stated under Heading A (imported hazardous wastes 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 the Basel Convention, have 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. 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 .....

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..... ified by the availability of adequate treatment and disposal facilities and of adequately trained manpower. The authorisation should be renewed only when, additionally, (a) the conditions prescribed by 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. SPCBs should insist that any hazardous waste previously dumped by a unit be cleared before authorisation 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. Further, for effective implementation of the directions and to regulate the hazardous waste it is necessary to strengthen 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 (12), in particular, the suggestions as contained at Serial Nos. (3), (4), (6) and (7). 27. HPC has found hazardous waste dumped in the .....

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..... or products must be carefully screened in order to avoid dirty technologies and products, and 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 CPCB to SPCBs to form part of their decision-making data regarding consents and authorisations. After research, if necessary, CPCB shall take up the matter with MOEF for requisite regulatory measure. 31. Another aspect that has been brought to our notice is the malpractice arising out of purported import of some permitted items. 32. 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. 33. Having regard to the above, we direct that besides other action, when illegal import of hazardous waste takes place due to non-fu .....

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..... environment pollution. Principle 10 of the Rio Declaration recognises the right to receive information and community participation with particular emphasis on hazardous materials. The said principle reads as under: 10. Environmental issues are best handled with the participation of all citizens concerned, 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. 38. 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. 39. Principle 19 stipulates that the States shall provide prior and timely notification and relevant information to potentially affected States .....

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..... whistle-blowers within the 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. 41. The suggestion is that an extensive awareness generation campaign should be taken by regulatory agencies. HPC has prepared a list of themes and short TV programmes on hazardous wastes. All these aspects require a serious consideration by the authorities concerned. 42. 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 inalienable 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. 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 autho .....

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..... in tonnes) 46. The report suggests that action against the importer for illegal import as per the Customs Act, 1962 may have to be taken. Further, it notices that the Central Board of Excise and Customs, Ministry of Finance were requested to ensure action against the importers of illegal consignments of hazardous wastes. 47. Broadly there are two aspects of the matter; one relating to those illegal imports which have been cleared and the consignments have already found their way to the market. These alleged illegal imports were made a few years back. In respect of this category of illegal imports, we direct that action against all concerned shall be taken by the authorities concerned in accordance with law. 48. The second aspect relates to the stocks of the aforenoticed hazardous waste, lying at various ports/ICDs/CFSs. The question is as to the manner 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 .....

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..... wastes for 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 advice from time to time. The composition of the Committee is: Dr. G. Thayagarajan, Senior Secretary, COSTED, Chennai Chairman Mr V. Rajgopalan, Chairman, CPCB Member Director, NEERI, Nagpur Member Director, NML, Jamshedpur Member Director, IIP, Dehradun Member Director, NCL, Pune Member Dr. N.H Hosabettu Director, HSH Dir., MOEF Member-Secretary Director, IICT Co-opted member 53. 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 directions 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 pers .....

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..... ned 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 place 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 authorities concerned. 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 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 ins .....

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..... 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 industry. (15) SPCBs along with the State Maritime Boards should prepare landfill sites and incinerators as per CPCB guidelines and only after prior approval of 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 Organisation 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 export 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. (3) Inventory We di .....

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..... y. 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. CPCB is directed to study 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. (10) Testing The testing procedure and criteria evolved or which may be evolved by CPCB shall be followed by the laboratories concerned. (11) Publication of toxic inventory and community participation SPCBs take steps to ensure that relevant important information on hazardous wastes should be displayed on notice boards and newspapers 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 .....

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..... and the 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 HW, which should be specifically earmarked for promotion of R&D. In the aforesaid order, wherever time-frame for 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, 200 .....

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