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Written By Gopal Krishna on Saturday, July 16, 2016 | 11:51 PM
Shri Anil Madhav Dave
Union Minister for Environment, Forest and Climate Change
Government of India
Sub:12 suggestions for making environment ministry effective in environmental protection
Dear Shri Dave Jee,
I recollect the privilege of being with you in an interactive session on “Right to water bodies –an approach to policy formation” held on 3rd October, 2010 in Kolkata. It was co-organsied by Director of Fisheries, West Bengal. Having known you I wish to make few suggestions to make your tenure as a minister fruitful and purposeful.
You have a reputation for sensitivity towards ecology in general and Narmada in particular but environmental researchers and activists are keeping their fingers crossed because an ideology of “development at any cost” is creating an impression that environmental regulations are a hurdle in the process of financial growth.
As you are aware the threat to the integrity of the natural systems is a threat to human health, and such threats have become routine because of myopic industrial agriculture, blind urban development, regressive transport systems and criminal neglect of non-human species.
While legislative safeguards for environmental protection do seem to exist on paper, homicidal ecological lawlessness has led to rampant industrial pollution, soil erosion, agricultural pollution, and genetic erosion of plant resources. This trend must be arrested in right earnest. It is quite crucial and merit your attention.
It is evident that the Cabinet Committee on Economic Affairs (CCEA), which gives mandate to your ministry, is not alive to the collapsing ecosystem. The stark question is whether the CCEA will let you make the structural changes required in terms of reversing the current policies which have resulted in manifest adverse impact on environmental health or whether poisoning of our blood streams and amputation of river basin systems would continue to be deemed collateral damage.
Be it blood contamination, congenital disorders, preventable but incurable cancer or extinction of known and unknown living species on our planet, it creates a compelling logic to re-examine the premises of Industrial Revolution and design a new one. In the developed world the model of development is under interrogation because of environmental problems.
Between 1975 and 1995 the Indian economy grew 2.5 times, industrial pollution went up four-fold, and vehicular pollution went up eight-fold. This analysis seems factually correct but it has ended up internalising the pollution and externalising the human cost of pollution. In such a context, health indicators of the deteriorating environment is witnessed in terms of a double burden of disease but the political class seems to have been rendered spineless by the corporate empires.
I submit that a beginning appears to have been made with your appointment after a long while but environmental crisis merits more than rhetoric or cosmetic solutions. If one were to identify some key areas which deserve your immediate and urgent remedial attention, it would be:
1. Publish a database of environmental criminals and fugitives with their photographs and profiles with the name of the companies which fall under the 64 heavily polluting industries under the Red category (highly polluting industries), 34 moderately polluting industries ('Orange' category) and 54 'marginally' polluting units ('Green' category). Also publish a list of India's Most Wanted Environmental Criminals with wanted posters.
2. The environment ministry must get enhanced budgetary allocation for rejuvenating the decaying institutional infrastructure including the Central Pollution Control Board. One parliamentary report too calls for saving the CPCB, the nodal body for regulating environmental norms. Currently, environment clearance, compliance and monitoring are in a very sorry state. It should be strengthened.
The Parliamentary Standing Committee on Science and Technology, Environment and Forests said the CPCB is being 'reduced to a near-defunct body'. The 141-page report of the steering committee on the environment and forests sector for the eleventh five year plan prepared by Planning Commission deals with environment and development. It refers to 'the regulatory challenge' and states: 'In the past some years, intensive economic growth, which has increased economic wealth, has led to massive pollution and degradation of the natural environment. One of the main reasons for this is that the regulatory and institutional framework to control pollution and degradation of natural resources is unable to keep pace with the rapidly changing economic, social and environmental situation in the country.'
'The number of polluting activities -- and the quantum of pollution generated -- has increased in the last several years. Furthermore, newer and newer environmental challenges are thrown up -- from solid waste disposal, to disposal and recycling of hazardous waste, to toxins like mercury, dioxins and activities like ship-breaking to management of vehicular pollution.'
It is high time environmental regulation keeps pace with environmental crimes. Even Interpol has a Pollution & Environment Crime Working group; India too needs one.
3. Stopping transboundary movement of polluting technologies, hazardous wastes, creating an inventory of hazardous chemicals and wastes besides conducting an environmental health audit along with the ministry of health to ascertain the body burden through investigation of industrial chemicals, pollutants and pesticides in umbilical cord blood. In one such study in the US, of the 287 chemicals detected in umbilical cord blood, 180 were known to cause cancer in humans or animals, 217 are toxic to the brain and nervous system, and 208 cause birth defects or abnormal development in animal tests. Absence of such studies in India does not mean that a similar situation does not exist in India. Until and unless we diagnose the current unacknowledged crisis, how will he regulatory bodies predict, prevent and provide remedy.
Currently, India is a victim of the unfolding Lawrence Summers Principle. Lawrence Summers, director of the White House's National Economic Council for US President Barack Obama as a World Bank chief economist, sent a memo to one of his subordinates justifying transfer of harmful chemicals from developed countries to developing countries. Indian position on the Basel Convention, Rotterdam Convention and the recently adopted IMO Convention reveals the same.
Our ecological space is a living entity but it is faced with the cannibalistic propensities of illegitimately totalitarian scientism which is married with political consensus. Its linear, piecemeal and closed technological thinking fails to acknowledge that no unlimited development is possible in the nature of things.
4. Adopt mandatory emission cuts as a national, domestic and enforceable objective even as we affirm the validity of the 'principle of historical responsibility' which is indisputable and incontrovertible. The current stance which states, 'subjecting national aspirational efforts to an international compliance regime may result in lower ambitions' is fine but our ability to reach a certain emission reduction target under a national plan as a national legal obligation would enhance India's negotiating position. In fact the National Action Plan for Climate Change should be revisited to ensure visible and truly 'credible actions' within our own framework.
It is inconsequential for citizens whether some post-dated international humanitarian law is being followed in letter or not, what is of consequence is whether or not its governmental actions factor in the spirit behind a law that will have ramifications not only for the present generation but also for the future generations. Disassociation with carbon trade is also a must because benefits from it are suspect.
5. Get the National Water Policy, National Environment Policy and the industrial policy rewritten for adoption of a river basin approach to undo the unhealthy legacy of bulldozing rivers, flood plains, forests, biodiversity, natural drainage etc in manner as if citizens and natural processes are irrelevant.
The National Council for Applied Economic Research has also made recommendations for the setting up the National Commission for Basin Management. This is required also as a response to the UN's Intergovernmental Panel on Climate Change's fourth assessment report that states, 'Glaciers in the Himalayas are receding faster than in any other part of the world and, if the present rate continues, the likelihood of them disappearing by the year 2035 and perhaps sooner is very high if the Earth keeps warming at the current rate'.
The River Basin Authority must be fashioned in manner that it does not remain a rubber stamp or a paper tiger because if all industrial projects are cleared by Cabinet Committee on Economic Affairs, what role can an effete body of the environment ministry do to undo the wrongs committed by the CCEA? In fact, if one undertakes an investigation of institutional accountability for Bhopal gas leak disaster, it is quite likely that the buck would stop at the CCEA. The environment ministry must save itself from its regressive influence.
6. Get a District wise state of environmental health report prepared in order to assess the current state of the local ecosystems.
7. Restore Environment Impact Assessment (EIA) Notification of 2006, make it stringent by ensuring preparation of EIA reports by independent institutions and abandon the proposed Environment Supplement Plan (ESP).
8. Initiate process of setting up of functional environmental courts in each district by introducing a Bill in the Parliament on the lines of Human Rights Courts provided for in the Protection of Human Rights Act.
9. Revise the Draft Wetlands (Conservation and Management) Rules, 2016 and come out with a fresh Draft for public comments in the supreme interest of present and future generations and top safeguard the wetlands which face grave threats from vested interests.
10. Stop giving environmental clearances to asbestos based factories and projects in keeping with the 19 page long Vision Statement on Environment and Human Health of your ministry which states “4.3.1 Environmental epidemiological studies are required to be carried out near to industrial estates and hazardous waste disposal sites to estimate the extent of health risks including from asbestos. Alternatives to asbestos may be used to the extent possible and use of asbestos may be phased out.”
It may be noted that Kerala Human Rights Commission has passed an order dated January 31, 2009 with the following recommendations: a) The State Government will replace asbestos roofs of all school buildings under its control with country tiles in a phased manner. b) The Government will take steps to see that the schools run under the private management also replace the asbestos roofs with country tiles by fixing a time frame. c) The Government should see that in future no new school is allowed to commence its functions with asbestos roofs. I seek your intervention to ensure strict compliance with this order and to get a Register of asbestos laden buildings prepared so that a road map can be prepared for their decontamination. The state ought to prepare a Register of those workers who handle asbestos and the victims of primary and secondary exposure from asbestos fibers.
The Concept Paper dated September 2011 of Union Ministry of Labour, Government of India presented at the EU-India Seminar that reveals that the Central Government is planning to eliminate asbestos from the country due to health reasons. The paper is available on Ministry's website.
Hon’ble Supreme Court's order dated January 27, 1995 and World Health Organisation (WHO)'s outline for the Development of National Programmes for elimination of asbestos related diseases' make a case for stopping all asbestos based products to prevent the imminent public health crisis as a consequence of which more than 55 countries have banned all forms of asbestos.
It will be great if you can pursue remedial measures for present and future generations before children get engulfed in the epidemic of incurable but preventable asbestos related diseases. This is of seminal importance to prevent preventable diseases and deaths.
11. Make sure that each central ministry has an environment department which submits a report on the ecological footprint of their actions and decisions.
12. Stop world's biggest and most ecologically disastrous project diverting rivers for interlinking them rivers and desist from pursuing the Ganga waterway project. ILR project can lead to Ara Sea kind of disaster.
The terms of reference of the constituted ‘Task Force’ on Interlinking of Rivers’ chaired by B N Navalawala which reveals that Hon’ble Supreme Court’s order dated February 27, 2012 in petitioner-less Writ Petition (Civil) No. 512 of 2002 is based on a flawed assumption that there is consensus and unanimity among the states in the matter of Interlinking of Rivers concept/project. The attached release of the Union Ministry of Water Resources, River Development & Ganga Rejuvenation issued by Press Information Bureau states that the Task Force “would also device suitable mechanisms for bringing about speedy consensus amongst the states and also propose suitable organizational structure for implementing the Interlinking of Rivers. The Task Force would also try to forge a consensus amongst the states in order to take forward the speedy implementation of the Interlinking of Rivers Program.”
It is noteworthy that the terms of reference of the earlier Task Force on Inter-Linking of Rivers under the Chairmanship of Shri Suresh P. Prabhu that was constituted on December 13, 2002 was also tasked to “Devise suitable mechanism for bringing about speedy consensus amongst the States” revealing absence of unanimity on the implementation of ILR project.
The judgment in the petitioner-less “Networking of Rivers” case inconsistently admitted absence of consensus and unanimity among the states in the matter of Interlinking of Rivers concept/project and still erroneously went on to conclude that there is unanimity and consensus.
The judgment dated February 27, 2012 in the “Networking of Rivers” case was authored by Justice Swatanter Kumar on merits rigorous scrutiny because it seems to establish a disturbing precedent by assuming “consensus” and “unanimity” although 18 States chose not respond to the notice of Supreme Court of India “despite the grant of repeated opportunities to do so.”
The moot point is how to solve the water problem. As per the Planning Commission’s Tenth Plan document, there are 383 ongoing major and medium projects awaiting completion, 111 of which are pending since pre-fifth Plan period i.e. more than 26 years. All these can be completed within five to eight years, yielding an additional potential of about 14 million hectares at a cost of Rs 77,000 crore as estimated by the plan task force, now raised to Rs 100,000 crore.
The second component listed in the Plan is development of minor irrigation, mostly in the eastern and northeastern regions. The total potential assessed is 24.5 million hectares with a total investment of Rs 54,000 crore, of which the government is expected to provide only Rs 13,500 crore, the balance coming from beneficiary farmers and institutional loans. The cost per hectare is only Rs 20,000 and gestation period almost nil, against a cost of Rs 100,000 and 12 years’ gestation in case of major and medium projects. The third equally beneficial scheme mentioned in the Plan is the groundwater recharge master plan prepared by the Central Ground Water Board needing Rs 24,500 crore to trap 36 billion cubic metres of water annually.
These measures are quite clearly better than the project of networking of rivers. The concerned judges would serve the ecological interest of the subcontinent better if they could pay heed to these proposals of the Plan document. Judges at all levels have, by and large, justified the confidence reposed in them. But there is scope for improvement in several spheres and it is up to the judiciary itself to rectify the defects in its role and prove to the public that as long as there is an efficient, impartial, independent and incorruptible judiciary, democracy in India will be safe from the tyranny of the executive and also the judiciary.
The apex court had come to the rescue of a river in the Kamalnath motel case where a hotel company which had stakes of Kamalnath, the then Union Environment Minister (presently Union Commerce Minister) had unilaterally taken a number of measures to divert the course of Beas River near Kulu-Manali in Himachal Pradesh (for instance, earthmovers and bulldozers were used to create a new channel) when floods threatened land in its possession. The court used the Public Trust Doctrine to define the state as a trustee of natural resources.
Government’s National Environmental Policy refers to Public Trust Doctrine saying, “The State is not an absolute owner, but merely a trustee of all natural resources, which are by nature meant for public use and enjoyment, subject to reasonable conditions, necessary to protect the legitimate interest of a large number of people, or for matters of strategic national interest.”
The NEP says, “The broad direct causes of rivers degradation are, in turn, linked to several policies and regulatory regimes. The result is excessive cultivation of water intensive crops near the headwork’s, which is otherwise inefficient, waterlogging, and alkali-salinization of soil.” It also refers to factors causing reduced flows in the rivers and seeks to ensure maintenance of adequate flows. As an action plan for river systems, the NEP expresses its intent to…“mitigate the impacts on river flora and fauna, and the resulting change in the resource base for livelihoods, of multipurpose river valley projects, power plants, and industries.”
The success of a democracy, especially one based on a federal system, depends largely on an impartial and independent judiciary endowed with sufficient powers to administer justice. Judges can import their personal views in interpreting a statute but they must not assume the role of guardians of public policy and should not play god. A distinction must be drawn between personal idiosyncrasy and incorporation of new economic and social policies in the interpretation of law.
The proposal of networking peninsular and Himalayan rivers emerges from a lack of rigorous evaluation of the ecological impacts which would prove disastrous not only to the fishery, but also to the biodiversity and biotic processes that have evolved over the past hundred of millions of years. One cannot expect the judges and legislators to understand but venturing into an area of their ignorance is against all canons of wisdom.
In the case in question the judges went on to advise the government that in case consent was not forthcoming from the states, the government should consider passing a legislation to obviate consent of the states for this project. Since criticizing the judges is a criminal offense, the advocates of resistance who are not shackled by their funding sources from among the citizenry and civil society need to keep a watch on the impeachable antecedents and future activities of the judges and legislators because it is quite possible that legislation for ILR or nationalization of rivers may get introduced in the Parliament. The rampant violation of the statutory principles and natural justice requires a vigilant citizens’ network as opposed to fund agency driven initiatives to investigate as to why the judges and legislators appear to have sold themselves to the ideology of the free market undermining ecosystem beyond repair and democratic rights of its citizens to bring the truth about it public domain.
The networking rivers does not mean drawing some mega litres from one river and pouring it into another like one does with static containers, or even with canals. The ramifications are much wider because a river is not only the water that flows or the channel, which holds the flow rather its much more. The river is the dynamic face of the landscape. “In the drama of history, the ecosystem is not the stage setting; it is the cast”.
In the past the court has rightly and consistently held that large infrastructure projects invariably raise technical and policy issues which the courts are not equipped to handle. In view of the reasons cited above and especially an evolving international law on transboundary rivers there is a clear case for the apex court to review its order on “networking rivers”.
As per National Water Policy, 2002, “Water resources development and management will have to be planned for a hydrological unit such as drainage basin as a whole or for a sub-basin, multi-sectorally, taking into account surface and ground water for sustainable use incorporating quantity and quality aspects as well as environmental considerations.” Outlining India’s National Water Policy in 2002, the then Prime Minister Shri Atal Bihari Vajpayee said that the policy should be people-centered and those communities ought to be recognized as the “rightful custodians of water.”This clearly shows that networking of river is contrary to the Government’s stated policy which means vested interests are so powerful that they can subvert both executive’s and judiciary’s role.
Given such a background the judgment in the Writ Petition (Civil) No. 512/2002 is very crucial. In the days, months and years ahead it is likely to reveal Indian Government’s exact policy vis-à-vis networking of rivers and court’s considered response while dealing with contempt applications in the face of sub continental protest. This case is likely to give birth to a new international legal order to safeguard the legitimate regime of river basins from the obsolete notions of ‘conquest over nature’, ‘surplus’ rivers and taming rivers. If the environmental movement in the Indian sub-continent fails to stop this mega project, it would mean nothing short of a premature death of the movement itself and acceptance of the proposed rewriting of sub-continent’s geography with painful consequences as fait accompli.
I wish to draw your attention towards the pearls of wisdom from Mahabharata that describes the Divine Being saying, “The mountains are his bones. The earth is his fat and flesh. The oceans are his blood. Space is his stomach. The Wind is his breath. Fire is his energy. The rivers are his arteries and veins. Agni and Soma, otherwise called the Sun and the Moon, are called his eyes. The firmament above is his head. The earth is his two feet. The cardinal and subsidiary points of the horizon are his arms,” the new government should reject the idea of “inter-linking of rivers based on feasibility”. This is narrated by Bhishma in conversation with Yudhishthira while referring to the reply of sage Bhrigu to sage Bharadwaja. This verse occurs in the Shanti Parva of Mahabharata.
I had submitted that interlinking of rivers entails mutilation of the veins and arteries of the divine nature. Rivers shape the terrain and lives of people by its waters which are always in a dynamic state. Breaking this dynamic would unleash forces of uncontrolled change and invite the ‘law of unintended consequences’. Let’s remember the terrible Aral Sea disaster caused by the mistakes of Soviet Union in which two Siberian rivers were diverted. If water scarcity is the perennial question, there better answers like the groundwater recharge master plan available with the government. Water can be made to “Reach to All Homes, Farms and Factories” by adopting this plan as well at a minimal cost.
It submitted that whenever there is conflict between financial gains and rivers, the latter must get priority over monetary benefits because by any yard stick economic value of a free flowing river is bigger than dammed and mutilated rivers. The capitalist, communist and colonial legacy of treating rivers as material flow that flow through pipelines must be abandoned and rivers must be treated as living beings that nourished our civilization for centuries and can nourish all the coming generations if cannibalistic tendency of diverting waters in bottles, dams and banks is stopped.
With regard to pollution in rivers, if the Prime Minister can demonstrate the political will to stop all the effluents and sewage from entering into river streams through a single executive decision, he would have done an exemplary act of arresting ecological collapse and for safeguarding the quality of blood flowing in veins and arteries of the present and future generations. Notably, one of the aims of the ILR project was dilution of pollution, disregarding its implications for the clean rivers. NWDA is under structural compulsion to push these ecologically destructive projects envisaged in 1970s to justify their continued existence. NCAER, NWDA and their promoters remain trapped in pre-climate crisis era wherein “taming of rivers”, dams were temples and not outcome of disease of gigantism and conquest over nature was considered part of scientific temper with which rivers could be murdered with impunity. The ToRs of the Task Force of 2002 and 2015 and court orders of 2002 and 2012 reveal that proponents of ILR project are frozen in a time warp.
In view of the above and the collective wisdom of the past and the present and responsibility towards coming generations besides concerns for non-human species there is a compelling reason to abandon ILR project for the sake of sanity and humanity.
While a beginning can be made with the above 12 steps, it must be realised that the economic ideology that has led to the current global financial crisis is the same ideology that is accountable for the ongoing ecological disorder of the lunatic ilk.
Therefore, nothing short of the death of the old industrial policies of the pre-climate crisis era and the rebirth of an enlightened policy-making that takes into account intergenerational equity with regard to natural resources would be sufficient. I am quite hopeful that you will be able to undo the regressive legacy of past years.
I will be happy to share more information and relevant documents in this regard.
Thanking you in anticipation
ToxicsWatch Alliance (TWA)
Mb: 09818089660, 08227816731
Issues of concern regarding Hazardous and Other Wastes (Management &Transboundary Movement) Rules, 2016
Written By Gopal Krishna on Saturday, July 02, 2016 | 3:24 AM
Shri Arun Jaitley,
Union Minister of Finance
Government of India
Smt. Nirmala Sitharaman
Union Commerce and Industry Minister
Government of India
Date: July 2, 2016
Subject- Issues of concern regarding Hazardous and Other Wastes (Management &Transboundary Movement) Rules, 2016
This is to draw your immediate attention towards some gnawing concerns with regard to Hazardous and Other Wastes (Management &Transboundary Movement) Rules, 2016 which was notified in The Gazette of India on 4th April, 2016. An examination of the new Rules released by the Union Minister of Environment, Forest and Climate Change shows that its provisions are contrary to the objectives of 'Swachh Bharat Abhiyan' (Clean India Mission) launched on 2nd October, 2014 by the Prime Minister.
I submit that while the prohibition on import of Waste edible fats and oil of animals, or vegetable origin; Household waste; Critical Care Medical equipment; Tyres for direct re-use purpose; Solid Plastic wastes including Pet bottles; Waste electrical and electronic assemblies scrap and Other chemical wastes especially in solvent form is praiseworthy but the continuance of patronage to international and national hazardous waste traders is contrary to supreme national interest.
I wish to inform you that the new Hazardous rule-2016 which was declared on 4th April, 2016 is not being implemented. Despite the new Rule for solid plastic waste, Customs at Sea port (including Mundra-Gujarat, Nhavasheva-Maharashtra, ICD-TKD - Delhi, Chennai sea port) are permitting the import of Plastics waste from Middle-East, USA and Europe in baled and foam, loose ( Solid Plastics waste in foam of Film, PET Bottle scrap, etc.). In Kanlda SEZ and Falta SEZ and some EOU also have plastics waste processing industries that got license in free trade zone in 1997-1998. Turning free trade zone into SEZ scheme they continue to import with same license. In 2013 September SEZ Board introduced new notification for export 40% for first 2 year (up to Sept-2015) and after that all Industries must export 80% for next 2 year (up to Sept-2018) and than 100% exports in last 5 year out of import plastics waste.
A total of 28 units in Kandla SEZ and Falta SEZ are not exporting out of country. They sell in domestic Indian market after paying Customs Duty and achieving NFEP (net foreign earning as per SEZ Rule). This procedure of maintaining SEZ unit for last 13 year is wrong as they not follow SEZ rule for physical exports out of India.
In the aftermath of new Hazardous Waste Management Rule, 2016 these SEZ units are importing waste/scrap. It implies that they continue to import, process and sell in India using the loophole in SEZ rule. The websites like www.zauba.com and other related sites indicate that PET Bottle Scrap and other waste is still being cleared from Mundra and Other sea ports after 4th April, 2016.
I submit that Ministries of Finance and Commerce appear to be in dark about the new Hazardous Waste Management Rule, 2016 as a consequence of which Customs and other related agencies are not stopping illegal traffic of plastic waste which is prohibited for import.
According to Supreme Court of India, “Hazardous Wastes are highly toxic in nature. The industrialization has had the effect of generation of huge quantities of hazardous wastes. These and other side effects of development gave birth to principles of sustainable development so as to sustain industrial growth. The hazardous waste required adequate and proper control and handling. Efforts are required to be made to minimise it. In developing nations, there are additional problems including that of dumping of hazardous waste on their lands by some of the nations where cost of destruction of such waste is felt very heavy. These and other allied problems gave birth to Basel Convention.”
The new rules titled "Hazardous and Other Wastes (Management &Transboundary Movement) Rules, 2016". It is noteworthy that the final text of Rules which has been announced through PIB has neither been put in public domain nor has it been uploaded on the website of the Ministry.
In order to comprehend issues at stake it is important to peruse the new Rules defines “import”, which means "bringing into India from a place outside India" and “importer” which means "an occupier or any person who imports hazardous and other waste".
As per the new Rules, “transboundary movement” means any movement of hazardous or other wastes form an area under the jurisdiction of one country to or through an area under the jurisdiction of another country or to or through an area not under the jurisdiction of any country, provided that at least two countries are involved in the movement.
It reveals that "transboundary movement" of hazardous has become part of ministry's sound environmental management approach. This term was introduced in 2008 apparently under the influence of hazardous waste traders when the pre-existing Hazardous Waste Rules were amended. This term has been lifted from UN’s Basel Convention on Transboundary Movement of Hazardous Wastes and Their Disposal. The key objectives of the Basel Convention are: “to minimize the generation of hazardous wastes in terms of quantity and hazardousness; to dispose of them as close to the source of generation as possible; to reduce the transboundry movement of hazardous wastes.” It is quite evident that the New Rules are contrary to the objective of the UN Convention to which India is a party. The 2016 Rules encourages disposal of waste farther away from the source of generation. It promotes transboundary movement of hazardous wastes.
The Convention was made part of its order by Supreme Court of India 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 Court took cognizance of violation of Article 14 and 21 of the Constitution of India.
Chapter III of the Rules deals with "import and export of hazardous and other wastes". Clause 11 of the Rules provides that "The Ministry of Environment, Forest and Climate Change shall be the nodal Ministry to deal with the transboundary movement of the hazardous wastes in accordance with the provisions of these rules." Clause 12 (2) reads: "The import of hazardous and other wastes form any country shall be permitted only for the recycling or recovery or reuse."
Such permission for import of hazardous waste for "recycling or recovery or reuse" is an attempt to define waste as non-waste. This is an act designed to re-define end-of-life product as non-waste. It is akin to defining waste as non-new good. It is an exercise in linguistic corruption. This has apparently been done to pander to the interests of international and national hazardous waste traders.
Clause 13 (1) reads: The import and export of the hazardous and other wastes specified in Schedule III, shall be regulated in accordance with the conditions laid down in the said Schedule.
This is an admission that trade in hazardous waste will happen in a business as usual manner.
Clause 13 (2) reads: " Subject to the provisions contained in sub-rule (1),-(i) the import or export of the hazardous wastes specified in Part A of Schedule III shall require Prior Informed Consent of the country form where it is imported or exported to, and shall require the license from the Directorate General of Foreign Trade and the prior written permission of the Central Government. (ii) the import of other wastes specified in Part B of Schedule III shall not require prior written permission of the Central Government and Prior Informed Consent of the country from where it is imported; (iii) the import and export of the hazardous wastes and other wastes not specified in Part A or Part B, respectively of Schedule III but having the hazardous characteristic outlined in Part C of the said Schedule shall require prior written permission of the Central Government before it is imported or exported from India, as the case may be."
It is apparent from above provision that Directorate General of Foreign Trade (DGFT), Ministry of Commerce has made Ministry of Environment, Forest and Climate Change subservient to commercial interest. Thus, it has subordinated the environmental health interest of the country.
Clause 13 (3) reads: "The import of hazardous and other wastes shall be limited to one-third of the total annual processing capacity of the unit, as specified in the authorisation."
This is also an admission of support for import of hazardous and other wastes.
Clause 15 of the Rules deals with Procedure for import of hazardous wastes and other wastes. It reads: "Actual users for recycling or reprocessing may import into the country other wastes listed in Part B of Schedule III (having no asterisk/s ‘*’) if such user is authorised by the State Pollution control Board, has the Directorate General of Foreign Trade license, wherever applicable and the relevant documents have been verified by the Customs authorities:
Provided that the documentation requirement for specific kind of waste shall be specified by the Ministry of Environment, Forest and climate Change from time to time."
I submit that unless all the waste that is generated in the country has been treated and disposed of in an environmentally sound manner how can hazardous waste import be permitted. How can the central government offer its non-existent services and infrastructure to other countries to help them deal with their hazardous waste and other wastes in the absence of required infrastructure like laboratories, treatment facilities and land in the country which can be used for testing samples of imported waste and treatment and landfills? In name of demonstrating “Ease of Doing Business” and Make India India cannot be turned into a land of landfills for foreign hazardous wastes.
Other provisions of Clause 15 of the new Rule make it clear that the government is promoting trade in hazardous waste in a business as usual manner.
The relevant provisions reads: "The Port or Customs authorities shall, in case of import of other wastes as specified in Part B of Schedule III, ensure that shipment is also accompanied by Movement Document in Form 7 and pre shipment inspection certificate issued by the inspection agency certified by the exporting country or the inspection and certification agency approved by the Directorate General of Foreign Trade."
It reads: "The importer of the hazardous waste and other wastes shall maintain records of the hazardous and other waste imported by him in Form 8 and the record so maintained shall be available for inspection."
It also provides "The importer shall also inform the concerned State Pollution Control Board and the Central Pollution Control Board, the date and time of the arrival of the consignment of the hazardous and other waste ten days in advance."
These provisions under Chapter III and the role of Directorate General of Foreign Trade (DGFT), Ministry of Commerce reveals that the Rules continue to promote trade in hazardous wastes. These Rules allow Indian to remain a dumping ground of hazardous wastes.
The Rules stated that it will not be applicable to "wastes arising out of the operation form ships beyond five kilometers of the relevant baseline as covered under the provisions of the Merchant Shipping Act, 1958 (44 of 1958) and the rules made thereunder." The Rules should have dealt with hazardous substances laden end-of-life ships as part of hazardous wastes which is covered under UN’s Basel Convention on Transboundary Movement of Hazardous Wastes and Their Disposal and accepted by Supreme Court of India as part of Right to Life. It is noteworthy that Basel Convention is related to the control of Trans-boundary movements of hazardous waste and their disposal. The ships destined for ship-breaking operations are "hazardous wastes" under the Convention.
I submit that in September 2007, the Ministry of Environment proposed an amendment to the Hazardous Wastes (Management & Handling) Rules; after amendment it would read "Hazardous Materials (Management, Handling and Transboundary Movement) Rules. The proposed rules had 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 was not banned.
Such motivated attempt at redefinition attracted widespread criticism from environment, public health groups and even the Confederation of Indian Industry (CII). It was a gross act done at the behest of hazardous waste traders. Two members of Supreme Court's own monitoring committee on hazardous wastes also raised objections. In a study, ASSOCHAM recommended ban on trade in hazardous wastes.
The question which merits consideration in the light of the 2016 Rules is: Are hazardous wastes and hazardous materials and recyclable materials synonymous?
The 2007 draft Rules had redefined "hazardous waste" as "hazardous material". It introduced a completely new system of classifying items, contrary to the definition provided by the Supreme Court and UN's Basel Convention on the Control of Transboundary Movements of Hazardous Waste, to which India is a party. The 2016 Rules follows the flawed path of the draft 2007 Rules.
The Basel Convention gives a very clear and simple definition of waste: wastes are materials which are disposed of, or intended to be disposed of, or required to be disposed of, to the environment”. The Supreme Court order of October 2003 had already observed that although Basel Convention has banned import of 76 items, India had only banned 29 items under the Hazardous Wastes (Management and Handling) Rules, 1989. It had directed the Union of India to incorporate the Basel list in the existing Rules and had actively argued for expanding the list of prohibited items for import.
I submit that instead, the amendment proposed by the Ministry leaves room for import of hazardous waste. If it gets notified in the Gazette of India, it will imply that any hazardous waste can be freely imported if it simply states that it meant for recycling, reuse and recovery.
The new Rules made public for creation 2016 Rules defines “disposal” as “any operation which does not lead to recycling, recovery or reuse and includes physico chemical, biological treatment, incineration and disposal in secured landfill.” It is noteworthy that it will have us believe that “recycling, recovery or reuse” is disposal.
A careful perusal of the Rules shows that the Rules are being under the tremendous influence of Ministry of Commerce. The design of the hazardous waste management rules is part of the process of re-engineering provisions of the Environment Protection Act and Rules therein in keeping with the recommendations made by the Govindarajan Committee on Investment Reforms and are admittedly “in line with this Government’s priority for Ease of Doing Business and Make in India”. In such a scenario, environmental health concerns have taken a back seat.
It must be recalled that the Ministry of Commerce abandoned its decision to have a registration scheme for overseas suppliers of scrap as applicable in China. As per the EXIM Policy 2002-2007, import of second hand goods is restricted and can be imported only with the permission of the Directorate General of Foreign Trade (DGFT). The DGFT had announced a plan in March 2006 to introduce a registration system covering imports of unshredded ferrous and non-ferrous scrap. This was proposed in the wake of explosions and loss of life linked to the presence of munitions in consignments arriving at Indian ports. Further, DGFT had announced a plan similar to that implemented in China which would have required applicants to demonstrate their financial and business standing.
But with the proposed amendment from Ministry of Environment, hazardous waste gets classified as recyclable material, and it would fall in the category of second hand materials. The DGFT will be able to allow even hazardous waste since as per the new notification a waste would be deemed as non-waste. In this way toxic waste will reincarnate itself as a reusable or recyclable or recoverable product.
When the DGFT had proposed its registration scheme covering imports of scrap, the US Institute of Scrap Recycling Industries and the Indian scrap steel industry had objected. They argued that exporters should make sure we don’t repeat the mistakes of the past. We should self-regulate to ensure no explosive materials are shipped.”
The DGFT appears to have caved in to their pressure and instead suggested self-regulation to the industry, according to information received from the Bureau of International Recycling (BIR) meeting in Warsaw, Poland during 22-23 October 2007. BIR is the international trade federation representing the world’s recycling industry, covering in particular ferrous and non-ferrous metals etc.
The position of the Ministry of Commerce (the DGFT) is, in effect, in complete contrast to the revised EU Waste Shipment Regulations, to which all EU member nations need to comply. The new EU rules now require an tracking document to accompany shipments of non-hazardous materials designated as waste, including recyclables. But the scrap industry feels that the complexity of information required by the new EU rules was totally illogical, complaining that it did not offer clear environment benefit.
In effect, the proposed rules are a formal announcement of globalisation of the toxic chemical crisis. Exporters in rich countries have been consistently seeking to export toxic scrap to India and likewise, there has been a similar trend amongst businesses in the India to import such waste.
I submit that self-regulation is no alternative to corporate accountability. The solutions are waste management through clean production and reduction in the use of toxics chemicals through life cycle assessment, precautionary principle, eco-design, extended producers' responsibility and the polluter-pays principle. All of this is sought to be undermined by the proposed rules. This is being done despite the fact that National Environment Policy acknowledges how "Environmental factors are estimated as being responsible in some cases for nearly 20 percent of the burden of disease in India". The New Hazardous Waste Rules does not factor in such concerns.
I submit that National Environment Policy refers to a range of goals that seem well-intended. They include strategies for cleanup of toxic and hazardous waste dump legacies, developing a national inventory of such dumps, an online monitoring system for movement of hazardous wastes and taking legal measures for addressing emergencies arising out of transportation, handling, and disposal of hazardous wastes.
In drafting the 2016 Rules, all of this has been ignored. It is germane to note that NEP mentions, "the Cabinet or a nominated Committee of the Cabinet may be requested to review the implementation of the National Environment Policy". In line with that, the government's new Hazardous Waste Rules should be revisited. Central Government should recollect that being a signatory to Basel Convention which it signed on 15th March, 1990 and ratified on 24th June, 1992, it is under the obligation to act as the letter and spirit of the Convention and the order of the Supreme Court of India. The order was reiterated on 30th July, 2012.
I submit that the Hazardous Waste Rules, 2016 should be revised to reflect Government of India’s intention to ratify the Ban Amendment to Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal. India missed the opportunity of ratifying it before the Twelfth Conference of the Parties held in Geneva during 4-15 May, 2015. The main principles of this UN treaty are: transboundary movements of hazardous wastes should be reduced to a minimum consistent with their environmentally sound management; hazardous wastes should be treated and disposed of as close as possible to their source of generation; and hazardous waste generation should be reduced and minimized at source. Government of India’s current position is contrary to these principles and stands in manifest contrast with its position in 1992.
By decision III/1, of September 22, 1995, at COP-3, the Third meeting of the Conference of the Contracting Parties to the above Convention that took place in Geneva in September 1995, adopted an Amendment to the Convention. This bans the export of hazardous wastes for final disposal and recycling from rich countries to poorer countries. This amendment was to enter into force following ratification by 62 parties as per Article 17 (5) of the Convention.
This Article reads as follows: “Instruments of ratification, approval, formal confirmation or acceptance of amendments shall be deposited with the Depositary. Amendments adopted in accordance with paragraphs 3 or 4 [of article 17 of the Convention] shall enter into force between Parties having accepted them on the ninetieth day after the receipt by the Depositary of their instrument of ratification, approval, formal confirmation or acceptance by at least three-fourths of the Parties who accepted them or by at least two thirds of the Parties to the protocol concerned who accepted them, except as may otherwise be provided in such protocol. The amendments shall enter into force for any other Party on the ninetieth day after that Party deposits its instrument of ratification, approval, formal confirmation or acceptance of the amendments.”
The Ban Amendment has not entered into force despite the fact that 70 parties have ratified it because Basel Convention Secretariat appears to have surrendered under the influence of powerful hazardous waste traders. The parent treaty, the Basel Convention has been ratified by 183 countries. Government should pay heed to the fact that the European Union has implemented the Basel Ban in its Waste Shipment Regulation. It has made it legally binding on all EU member states. Norway and Switzerland too have implemented the Basel Ban in their legislation.
Under the influence of countries like USA, Germany, United Kingdom, Australia, Canada, South Korea and Japan in general and U.S. Chamber of Commerce, the world’s largest business federation representing the interests of more than 3 million businesses, International Chamber of Commerce, US Institute of Scrap Recycling Industries and Bureau of International Recycling (BIR), the international trade federation representing the world’s recycling industry, India’s Hazardous waste Rules have faced continued dilution. These countries and interests never wished Convention and compliant Rules to come into force.
I submit that as part of Clean India Mission, Central Government should to regain its original stance of being a strong opponent of the international waste trade and an ardent supporter ban on toxic waste exports from the world’s richest countries to less industrialized ones. Government of India should recollect its position at the First Conference of Parties to the Basel Convention in Piriapolis, Uruguay, from 3-4 December, 1992. A. Bhattacharja, Head of the Indian delegation who pleaded with industrialized countries to stop exporting hazardous waste. “You industrial countries have been asking us to do many things for the global good — to stop cutting down our forests, to stop using your CFCs. Now we are asking you to do something for the global good: keep your own waste.”
I submit that Government of India was firm even at the Second Basel Convention Conference of Parties, in March 1994 and advocated ban on all hazardous waste exports from the world’s most industrialized countries, the members of the Organization of Economic Cooperation and Development (OECD) to non-industrialized countries like India.
It was only in 1995 that Government of India revised its position at the Third Basel Conference of Parties in September 1995 under the harmful influence of representatives of the US and Australia. This led to Indian government announcing that it was reconsidering its position on the Basel Ban.
I submit that Environment Ministry should be made to disassociate itself from the regressive statement of Shri Kamal Nath, the then Union Minister of Environment & Forests who averred, “We are against environmentally unfriendly recycling. We are not against the movement of waste, provided the recipient has adequate equipment, facility and the proper process to deal with it.” This was a direct assault on intent of Basel Convention. It was the first nail in the coffin. Consequently, India did not ratify the ‘Ban Amendment’ to the Basel Convention, which could have stopped the import of hazardous waste and stopped India from becoming a leading dumping ground. “The last damage was done at the Bali Conference on the Basel Convention when the then Minister of State for Environment Shri Namo Narain Meena said that we saw hazardous waste as recyclable material under the influence of Commerce Ministry, which has adopted the policy of free trade in hazardous waste unmindful its environmental and human cost.
I submit that US Government and ICC have been instrumental in outwitting the UN ban on hazardous waste trade through bilateral Free Trade Agreements between countries. In one of its position paper on the Basel Convention, ICC has even called for the ban on hazardous waste to be stopped by the World Trade Organization (WTO) because it is trade disruptive. This undermines the customary environmental law principles. Wikileaks has revealed how the US Government ensured that the same Shri Kamal Nath was not made the Commerce Minister again for his position in WTO negotiations in a different context.
In view of the above facts, Government should not delay its ratification of Ban Amendment anymore. The review of new Hazardous Waste Rules provides a chance to recover the lost ground and re-adopt its 1992 position and ask the rich countries to “keep your own waste” for global common good.
Dr Gopal Krishna
ToxicsWatch Alliance (TWA)
Mb: 08227816731, 09818089660
Labels: Hazardous waste