TMI Blog2003 (10) TMI 684X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... EF, 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 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 Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nagement 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 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd 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' 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 Foru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 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 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 Sch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 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 par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 guidelines are ready. Let the same be issued forthwith. Monitoring CPCB shall issue guidelines to be followed by all concerned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 for effecting service of notice on the importers. We direct these authorities to rend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... srupting 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, unsatisfactorily a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th this division. The division 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 representin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eir 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Central Government and MOEF would also consider the strengthening of Hazardous Substances Management Division but not at 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d SPCB concerned should evolve a mechanism or checklist to ensure that an authorisation 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 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny 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 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 ba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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. 37. Section 3(2)(12) of the Environment Protection Act, 1986 stipulates collection and dissemination of information in respect of matters relating to 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lved in hazardous chemicals and generating hazardous wastes display online data 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 data 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 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 accep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dhawan Committee has submitted report dated 26-7-2002. 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 port/ICD/CFS No. of containers ICD, Ludhiana 63 (+ 21,747 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 ICD, Bangalore 86 (quantity 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e with law, directions of this Court and the Rules and Regulations. 52. 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 wastes and characterisation of the constituents that would render such wastes hazardous. (b) Prohibition/restriction of hazardous wastes.-Identification and listing of hazardous 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 Direct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... will be sent to CPCB. (2) Ship-breaking We accept the following recommendations of HPC: (1) Before a ship arrives at port, it should have proper consent from the authority concerned or the State Maritime Board, stating that it does not contain any hazardous waste or radioactive substances. AERB should be consulted in the matter in appropriate cases. (2) The ship should be properly decontaminated by the shipowner prior to the breaking. This should be ensured by SPCBs. (3) Waste generated by the ship-breaking process should be classified into hazardous and non-hazardous categories, and their quantity should be made known to the authority concerned 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respective of the possession of certification should be dealt with sternly and the licence of the plot-holder should be cancelled and the 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 shipowner. And no breaking permission should be granted without such an inventory. This inventory should also be submitted by GMB to SPCBs concerned to ensure safe disposal of hazardous and toxic waste. (14) The Gujarat Maritime Board and Gujarat SPCB officers should visit sites at regular intervals so that the plot-owners 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 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 shou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ended appropriately to prevent and punish illegal traffic. The Government is directed to examine this aspect and file a report. (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. (9) CPCB's role CPCB, for a period of two years, 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. CPCB will collate the data from SPCBs directly from each SPCB, and will randomly cross-check the data up to 10% of the units, prior to preparing the national inventory. In its report, 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. 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rough 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 HPC would be kept in view: The policy document should emphasise a commitment to the recycling of wastes and 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 is 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, entrepreneurs and other stakeholders 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 the Health Ministry shall examine and respond to the recommendations of HPC which read: MOEF and the Ministry of Health to compile an extensive data regarding exposure and epidemiological studies. They ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tories at ports/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 units concerned. 4 weeks SPCBs/ PCCs 14 Awareness programmes 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 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 ..... 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