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All eyes on Union Environment Minister after Delhi Govt betrays Okhla residents & favors Jindal’s municipal waste incinerator

Written By Gopal Krishna on Tuesday, June 30, 2015 | 12:53 AM

Delhi Govt promoting environmental lawlessness & unapproved Chinese incinerator technology in national capital

Delhi's Okhla area awaiting 1984 industrial disaster like fate due to unapproved Chinese technology

Now that Delhi government has betrayed environmental groups and residents of Okhla by promoting environmental lawlessness and unapproved Chinese incinerator technology in national capital, all eyes are now on the promise made by Prakash

In a response to a letter regarding imminent industrial disaster in Okhla, the minister assured that he “Will look into the matter” and forwarded the complaint to Shashi Shekhar, Special Secretary, MoEFCC and Chairman, Central Pollution Control Board. The complaint letter and relevant documents shared with the minister are attached. Shashi Shekhar is also the head of Hazardous Substances Management Division which deals with issues of municipal solid waste (MSW) as well.

This is the case of a Dioxins and heavy metals emitting unapproved Chinese incinerator technology based municipal solid waste (MSW) to energy plant of Timarpur-Okhla Waste Management Co Pvt Ltd (TOWMCL) of M/s Jindal Urban Infrastructure Limited (JUIL), a company of M/s Jindal Saw Group Limited which faced 28 dates of hearing in Writ Petition No. 9901 of 2009 at  Delhi High Court and is currently pending before the National Green Tribunal (NGT)'s bench headed by Justice Swatanter Kumar since February 2013. The case is named Application No. 22 of 2013 in NGT. The matter came up for hearing yet again for the 21st time on 12th May, 2015. By an earlier order of 7th May, 2015, NGT had cancelled the scheduled hearing. This case has been replete with such cancellations both in Court and the NGT while residents of Delhi's Okhla locality await relief and justice.

Significantly, as BJP MP Vijay Kumar Malhotra, in a letter dated 27th June, 2008 to the Lt. Governor of Delhi had expressed apprehension over the location of such a plant in South Delhi.  He wrote, "This plant would release various types of harmful gases which will certainly pose serious health threat to the lives of surrounding residents." Subhash Chopra, as Congress MLA, Delhi Legislative Assembly wrote separately to Chief Minister of Delhi and Lt. Governor of Delhi demanding inquiry into the toxic flay ash from the Jindal's large plant in a letter dated 27th December, 2013.

The attached Show Cause Notice issued to the plant of Jindal's TOWMCL reveals unambiguously that the its Consent to operate under Air (Prevention and Control of Pollution) Act, 1981 & Water (Prevention and Control of Pollution) Act, 1974 granted by Delhi Pollution Control Committee (DPCC), which exercises the delegated powers of CPCB had expired on 20th March, 2013. The plant is operating without the same since then. But DPCC has failed to order its closure despite such blatant violation of law.

Even NGT has not done anything to ensure closure of the plant till date. It is evident that rule of law has lost its meaning in the matter of this plant. It is apparent that the regulatory agencies and NGT might is dwarfed by the tremendous influence of the company in question. As per the website of TOWMCL, it is claimed that the plant received Consent to operate on 21st December. 2011. The fact is that the plant is operating without consent to operate since 2013.

As per the attached official document of DPCC on the subject of "Status of Okhla Waste to Energy plant by Timarpur-Okhla Waste Management Co Pvt Ltd" (TOWMCL) as on 16th April, 2015. The plant of TOWMCL is operational. It is processing 1950 MT of waste and generating 16 MW of power. The report mentions that the plant was supposed to use RDF technology but refrains from mentioning that it is using an unapproved Chinese technology brought to light by the CPCB committee report prepared pursuant to 22th March 2011 dated order of the then Union Minister of Environment & Forests. This led to the official recognition of deviations from approved technologies. The Chinese technology provider is from Hangzhou New Century Company Ltd of Hangzhou Boiler Group. The High Powered Technical Experts Evaluation Committee of CPCB in its 31 page report on the Timarpur-Okhla Waste to Energy Incinerator Plant brought to light the illegalities committed by Jindal's TOWMCL. The report was communicated on March 22, 2012. This report is based on three meetings of the Technical Experts Evaluation Committee held on April 26, 2011, August 11, 2011 and September 22, 2011 under the chairmanship of Chairman, CPCB.

Javadekar, Union Minister of Environment, Forests & Climate who has promised to look into the matter.

Notably, substitution of technology is prohibited under the provisions of the Environmental Clearance. It is deemed dangerous to according to a report of CSIR-National Environmental Engineering Research Institute (NEERI).

Notably, the representatives of GTZ (German Technical Cooperation) led by Dr. Juergen Porst, Senior Advisor stressed the need for a Disaster Management Plan in the very first meeting of this CPCB Committee, which is annexed to the CPCB's report. This finds reference in the minutes of the meeting annexed with the report. It underlines the possibility of disaster from the Timarpur-Okhla Waste to Energy Incinerator Plant, which is situated in a residential area.

It is noteworthy that a hazardous plant in Bhopal's residential area that led to world worst industrial disaster in 1984 also did not have any disaster management plan. This report made a shocking revelation that although High Court has been hearing the case since 2009, the project proponent did not inform the court about gross deviations from the project design plan envisaged in the EIA report. As per the minutes of the second meeting of this committee, non-cooperative approach of the senior officials of Timarpur-Okhla Waste to Energy Incinerator Plant was "condemned". Representatives of GTZ underlined that there was lack of transparency with regard to environmental and health impact on the neighborhood residents. It was also noted that the fugitive emissions and the expected emission of Dioxins and Furans has not been quantified. The characteristic of ash and required standards was not mentioned.

Prof. T R Sreekrishnan, Department of Biochemical Engineering and Biotechnology and a member of the Committee stated that disposal option for incineration instead of bio-methanation proposed for green waste is in violation of what was mentioned in the EIA report of the company in question.

Notably, all subsequent reports by subordinate officers of Chairman, CPCB are subservient to this report of the High Powered Technical Experts Evaluation Committee headed by Chairman, CPCB. This report revealed how illegal Chinese boilers are being used without any approval in Delhi's Okhla Waste to Energy project. The technical review by CPCB committee admitted that efficacy of reciprocal stoker type boilers (in place of RDF) "is not known for Indian conditions and requires to be verified."  There is a compelling reason for treating this report as the main report of CPCB.

DPCC's attached status report dated 16th April, 2015 states, "...in case the Project Proponent (Jindal's TOWMCL) found defaulting in compliance of the direction of Tribunal, the Tribunal would be compelled to direct the closure of this industry." The DPCC concludes that "directions u/s 31 (A) of the Air Act, 1981 was issued on 03.07.2014 and simultaneously show cause notice was issued for refusal of consent under Air & Water Act and authorization under MSW Rules.

The Project Proponent has filed statutory appeal against the directions dated 03.07.2014 before the Ministry of Environment & Forests, Government of India. The appeal was listed for 27.02.2015 and
the same is pending. The matter is to be listed for final hearing and the next date of hearing is yet to be notified." It is apparent that even DPCC was waiting for NGT to hear the matter on 7th and 8th May, 2015 after CPCB filed its inspection report.

Notably, the Environmental Clearance (EC) which has been amended several times was given to the plant of Jindal's TOWMCL. It is the sad legacy of Shri A Raja years in the MoEF and Shri Rakesh Mehta years in Municipal Corporation of Delhi and Government of NCT of Delhi.

The ToR given by MoEF's Experts Appraisal Committee to the project in question specifically demanded "Disaster Management Plan" but the High Powered Committee constituted by the then Union Minister of Environment & Forests headed by Chairman, CPCB observed in its report that this plan has not been prepared. It condemned the non-cooperation by the company. This committee noted that this plant is operating in violation of Municipal Solid Waste (Management & Handling) [MSW] Rules, 2000. It came to light from the observation of A B Akolkar from CPCB. Akolkar is currently the Member Secretary of CPCB.

A judgment of Delhi High relevant to Okhla refers to 'The summary of "Epidemiological Studies on Adverse Health Effects Associated with Incineration" would show that medical waste incinerators are a leading source of dioxins and mercury in the environment and there is link between incinerator emissions and adverse health impacts on incinerator workers and residents living around the incinerators.'

The observations made in the judgment will have far reaching implications. It reads: "Both older and more modern incinerators can contribute to the contamination of local soil and vegetation with dioxins and heavy metals. In several European countries, cow's milk from farms located in the vicinity of incinerators has been found to contain elevated levels of dioxin, in some cases above regulatory limits. Increased levels of dioxins have been found in the tissues of residents near to incinerators in the UK, Spain and Japan. At an incinerator in Finland, mercury was increased in hair of residents living in the vicinity. Children living near a modern incinerator in Spain were found to have elevated levels of urinary thioethers, a biomarker of toxic exposure. " It notes that "After 2 years of operation of incinerator, dioxins levels were found increased by about 25% in both groups living between 0.5 to 1.5 and 3.5 to 4.0 km away (201 people) of people. In the repeat analysis, the increase was in the range of 10-15%".

It records that "Mothers living close to incinerators and crematoria from 1956 to 1993" showed "increased risk of lethal congenital abnormalities, in particular, spinal bifida and heart defects, near incinerators: increased risk of stillbirths and anacephalus near crematoria". With regard to "Residents from 7 to 64 years old living within 5 km of an incinerator and the incinerator workers" the judgment observes, "Levels of mercury in hair increased with closer proximity to the incinerator during a 10 year period".

The judgment found that "Residents living within 10 km of an incinerator, refinery, and waste disposal site" showed "Significant increase in laryngeal cancer in men living with closer proximity to the incinerator and other pollution sources". The "Residents living around an incinerator and other pollution sources" showed "Significant increase in lung cancer related specifically to the incinerator". The "People living within 7.5 km of 72 incinerators" displayed "Risks of all cancers and specifically of stomach, colorectal, liver and lung cancer increased with closer proximity to incinerators". The petition was filed by residents seeking directions to the authorities and the operator to close down the Common Bio-Medical Waste Treatment facility operating less than 30 Meters from the DDA Self Financing Scheme Flats at Sukhdev Vihar and other colonies and burning 12-15 tons of hazardous bio-medical Waste per day injurious to the health and the life of the 10 lakh public living around it and degrading the environment for all times to come.

The order observes, "10. In Master Plan for Delhi, 2021, notified on 07.02.2007, hazardous waste processing viz. hospital/medical/industrial waste is amongst the industries, manufacturing of which shall be prohibited within National Capital Territory of Delhi." It is not in dispute that Delhi's municipal waste has hazardous waste characteristics.

It is noteworthy that the biomedical waste incinerator is located exactly in the vicinity of the residential colonies and Jindal's controversial municipal waste incinerator.

The  Court observed that "This is a mandatory requirement of the guidelines issued by CPCB, that such facility should be far away from residential and sensitive areas" The same holds true for the location of the Jindal's municipal waste based incinerator plant. This order of High Court underlines that its approach to environmental damage is better than that of NGT. The plant is amidst residential colonials and institutions of national importance like Central Road Research Institute, Institute of Genomics and Integrative Biology and the Indian Institute of Information Technology.  Such toxic emissions from the Jindal's power plant in an ecologically sensitive area and thickly populated area has become a routine affair with all the concerned authorities turning a blind eye towards this illegitimate and illegal act. This plant has violated all the rules in the rule book.

Besides violating all the relevant laws and rules, this plant is violation of Wildlife Protection Act 1972 creating a compelling reason for the closure of this plant. The plant became operational in 2012
but it is using untested and unapproved Chinese incinerator technology, a fact noted in the report of the Central Pollution Control Board committee constituted after a delegation had met Shri Jairam Ramesh, the then Union Minister of Environment & Forests pursuant to his site visit of the plant. It is noteworthy that the Union Environment Minister had written to the then Chief Minister, NCT of Delhi underling that the plant is functioning in violation of environmental regulations.

Notably, this plant does not have clearance from the Delhi Urban Arts Commission, which is a mandatory requirement.

This plant is in a green belt contrary to the Master Plan of Delhi, in contravention of section 3(2) (v) of the Environment (Protection) Act, 1986, Rule 5 (ix) of Environment (protection) Rules, 1986 and Guidelines for Establishment of Industries issued by MoEF.

As per Supreme Court's order in the Writ Petition (Civil) No.888 of 1996 such subsidies are not meant for incinerator plants like the one in Okhla.  Court's order dated 6th May, 2005 said, "...we hope that till the position is clear, the Government would not sanction any further subsidies." It is noteworthy that on 15th May, 2007, the Court's order "permit (s) Ministry of Non-conventional Energy Sources (MNES) to go ahead for the time being with 5 pilot projects chosen by them" but it is noteworthy that this refers specifically to bio-methanation technology. MNES is renamed as Ministry of New & Renewable Energy (MNRE) and is part of Power Ministry at present. It has been revealed through RTI that neither the proposed Delhi's waste to energy incinerator projects one of those 5 pilot projects nor is it based on the recommended technology.

It is apparent that amendments made in the EC have been made to gain this assistance of Rs 1.5 crore/MW even as the stay by the Supreme Court on sanction of any further subsidies for projects on energy recovery from Municipal Solid Wastes continues to be in force, in manifest violation of Court's order. In the light of the Court's order MNRE must be persuaded to withdraw or modify its letter (No.10/3/2005-UICA) to stop promotion of polluting technologies like incinerators.

Supreme Court is quite categorical in saying, "The Committee has recommended that projects based on bio-methanation of MSW should be taken up only on segregated/uniform waste unless it is demonstrated that in Indian conditions, the waste segregation plant/process can separate waste suitable for bio-methanation. It has opined that there is a need to take up pilot projects that promote integrated systems for segregation/collection/ transportation and processing and treatment of waste. In view of the report of the Committee and having regard to the relevant facts, we modify the order passed by this Court earlier and permit Ministry of Non-conventional Energy Sources (MNES) to go ahead for the time being with 5 pilot projects chosen by them, keeping in view the recommendations made by the Expert Committee and then take appropriate decision in the matter." Despite this Delhi Government has erred in supporting illegal waste to energy incinerators in Delhi which is contrary to the Court's order.

But Delhi Government falsely claimed in the High Court that it was one of the five projects cleared by Supreme Court leading to dismissal of petition filed by residents but when the High Court later found to its shock that such a claim was manifestly untrue, the petition was restored. It was in March 2009 that Writ Petition (Civil) No. 9901 of 2009 which was initially dismissed on 12th August, 2009 because of misrepresentation of facts by A S Chandiok the then Additional Solicitor General.  High Court later found that it was misled earlier which had led to it dismissing the petition. The Petition was restored by an order dated 15th January, 2010. In the presence of A.S. Chandihok, the bench headed by the Chief Justice, Delhi High Court in the order observed, "that the project in question" and "the location of the pilot project in Delhi was neither recommended by the Expert Committee nor approved by the Supreme Court."

In a strange case one of NGT's order in the case in question relied on reasoning advanced in the dismissal order of High Court and chose not to take cognizance of the  Court's restoration of the same case which later admittedly got transferred to NGT.

Notably, High Court on had asked Central Pollution Control Board (CPCB) and the Delhi Pollution Control Committee (DPCC) 18th July, 2010 to conduct a joint inquiry about India's first waste-to-energy plant and file a report on the allegations that it posed health risks to citizens.  The Bench of Chief Justice Dipak Misra and Justice Sanjiv Khanna ordered, "A joint report be submitted by the DPCC and the CPCB after an inquiry of the site of the energy plant about the alleged risks posed to citizens".

It is noteworthy that Asian Development Bank (ADB)'s Asian Pacific Carbon Fund (APCF) dropped this waste to energy plant out of its portfolio amidst controversy surrounding it. In any case it is a misplaced carbon credit project. It underlines how carbon trade is not part of the solution but part of the problem.

Now a bizarre situation has emerged because the arguments for Refuse Derived Fuel (RDF) incineration technology that was advanced by the company and the law officers of the previous central and state governments are no more relevant because the plant is using an experimental Chinese technology which was never ever mentioned at the time of submitting the project proposal or in its EIA report based on which a so-called Public Hearing was conducted in Saket.

The ongoing protest rallies and an online campaigns against the toxic, waste-to-energy incinerator where students are also participating in large numbers underlines that the operation of Jindal's waste burning based power plant is an act of environmental lawlessness in the heart of the national capital.

The closure of this plant will be a major and memorable contribution to NCR's landscape for generations to come and help prevent approval for hazardous industrial units in the region at a time when Delhi's residents are gasping for fresh air.

Having been involved with these issues since October 2000 and with this specific issue since March 2005, ToxicsWatch Alliance (TWA) has sought minister’s urgent intervention for prevention of unfolding public health and environmental disaster in Delhi's Okhla area and adjoining areas of Uttar Pradesh in particular and NCR region in general due to the Dioxins emitting plant of Jindal's TOWMCL.

Global experience demonstrates without any dispute that incinerator based WTE plants do not resolve the issue of non-availability of land and landfill sites because disposal of incineration ash into the landfill site remains a problem recognized under Schedule IV of the MSW (Management and Handling) Rules, 2000. This experience also shows that energy from municipal waste is not produced at any lesser price in fact it more expensive. The myth of incinerator based WTE plant solving the problem of leachate which contaminates ground water has long been debunked. The existing literature on waste management underlines that incinerator based WTE plants constitute a meaningless and misplaced option. The fact is that it is not a solution, it is a problem creator. It gives birth to the problem of what can deemed as landfills in the sky. It is a case of putting resources up in flames.

It appears strange that Delhi Government is following the footprints of a government whose misplaced initiatives like these led to it being vanquished.

For Details: Gopal Krishna, ToxicsWatch Alliance (TWA), Mb: 08227816731, 09818089660
E-mail: 1715 krishna @gmail.com, Web: www.toxicswatch.org

Dubious foreign ship CHENG (ex-Albarela), IMO No. 8115332 in Indian waters on “humanitarian ground”

Written By Gopal Krishna on Monday, June 29, 2015 | 11:49 PM


To

Shri Manohar Parikar
Union Minister of Defence
Government of India
New Delhi

Shri Nitin Gadkari
Union Minister of Shipping
Government of India
New Delhi

June 24, 2015

Subject- Dubious foreign ship CHENG (ex-Albarela), IMO No. 8115332 in Indian waters on “humanitarian ground”

Sir,

Pursuant to my communication to Indian Coast Guard dated 23rd June, 2015, this is to draw your attention towards the entry of a dubious foreign ship CHENG (ex-Albarela), IMO No. 8115332 which entered Indian
waters some 35 days back citing failure of its generator.

I submit that this ship remained at Gopnath anchorage, Gujarat for some 25 days without official permission. I have learnt that some 10 days back following the permission of Alang Port Officer, it was
allowed to be shifted to Bhavanagar anchorage, Gujarat on humanitarian grounds. This ship was built in 1983. Its port of registry is Kingstown. It is carrying the flag of St. Vincent & The Grenadines.

I have learnt that it is not clear as yet as to whether the ship is a cargo or an end-of-life ship meant for dismantling.

It is not clear whether this ship submitted Pre Arrival Notification of Security (PANS) to jurisdiction port, Indian Coast Guard and Indian Navy at least 96 hours in advance before entering from foreign port.

I submit that it is not clear whether there was prior informed consent taken before entering Indian Exclusive Economic Zone (EEZ) and Search and Rescue Region (SRR).

ToxicsWatch Alliance (TWA) has been working on the issue of hazardous wastes and ship breaking for over decade. It has been an invitee and participant in the UN Conventions. It is an applicant before the
National Human Rights Commission (NHRC), Parliamentary Standing Committee on Science, Technology, Environment & Forests, Parliamentary Petitions Committee, Parliamentary Standing Committee on Labour and relevant UN agencies besides Inter-Ministerial Committee on Ship breaking. It was the applicant before Supreme Court wherein the order for creation of the Shipbreaking Code was passed. TWA had appeared before the Supreme Court’s Monitoring Committee on Hazardous Wastes, Court’s Technical Experts Committee on Hazardous Wastes related to Ship breaking and pursued cases involving famous ships like RIKY (Kong Frederik IX), Le Clemenceau, SS Blue Lady, Platinum II and Exxon Valdez and others.

On behalf of TWA I submit that there have been several instances wherein such foreign ships have been abandoned in Indian waters. Such instances set very dangerous precedent and opens flood gates for such
dead and dubious ships due to conniving and complicit officials. It is high time a high level probe unearths the rot and sets it right before it is too late.

While Indian Coast Guard and Naval Intelligence have consistently raised security concerns from the entry of foreign ships, the role of other agencies of the state and central government appear to compromise country's maritime and environmental security disregarding fragile coastal zones of Bhavnagar, Gujarat.

In view of the above, I seek your urgent intervention to examine the matter and set matters right.

Yours faithfully
Gopal Krishna
ToxicsWatch Alliance (TWA)
Mb: 08227816731, 09818089660
E-mail-1715krishna@gmail.com
Web: www.toxicswatch.org

Cc
Shri Prakash Javadekar, Union Minister of Environment, Forests & Climate Change
Secretary, Union Ministry of Defence
Secretary, Union Ministry of Shipping
Secretary, Union Ministry of of Environment, Forests & Climate Change
Shri Susheel Kumar, Additional Secretary, Union Ministry of
Environment, Forests & Climate Change
Shri Shashi Shekhar, Special Secretary, Union Ministry of Environment,
Forests & Climate Change & Chairman, Central Pollution Control Board
(CPCB)
Shri Barun Mitra, Joint Secretary, Union Ministry of Shipping,
Chairman, Ship Breaking Scrap Committee
Shri Ravi Shankar Prasad, Joint Secretary, Union Ministry of
Environment, Forests & Climate Change
Shri A.C.R. Das, Consultant, Union Ministry of Steel

Violating international & national laws foreign end-of-life ship M.V.BLOSSOM beaches on Alang beach, Bhavnagar, Gujarat

Indian Coast Guard, Ministry of Defence Expresses its objection, Environment Minister promised to examine the matter Per Arrival Notification of Security not given to Indian authorities

Notwithstanding alarm bells from Indian Coast Guard, Ministry of Defence which raised objection against entry of end-of-life vessel M.V. Blossom (ex-Orange Blossom), IMO No. 8407930 in Indian waters in violation of Hon’ble Supreme Court’s order, Shipbreaking Code 2013 and Basel Convention, the dead ship has been beached on Alang beach, Bhavnagar, Gujarat. This ship was built in 1985. It entered Indian waters from Singapore. It previous owner is supposedly from Sharjah and it was previously owned by Opus Shipping Ltd, London. This appears shady because the official of M/s Silver Star Martime who communicated belatedly on their behalf used a Gmail email ID and not a company ID and did not disclose his name.
Notably, all vessels calling Indian Ports are to submit Per Arrival Notification of Security (PANS) to jurisdiction port, Indian Coast Guard and Indian Navy at least 96 hours in advance when entering from foreign port and 24 hours when entering from Indian Port as per the circular of Directorate of Shipping in force. Besides this as per the Shipbreaking Code 2013 when any ship is coming for breaking in India, the vessel Master/owner are required to inform the Maritime Rescue Coordination Centre (MRCC), Mumbai, Indian Coast Guard, Ministry of Defence prior entering Indian Search and Rescue Region (SRR). MV Blossom, the dubious ship has failed to do so. As per Code, prior information must be provided 21 days before entry into India waters.

MRCC, Mumbai, Indian Coast Guard, Ministry of Defence "has lodged it's observation” with “the Gujarat Maritime Board and the agents of the vessel in India for not complying to the Ship Breaking Code" 2013 created in compliance with Hon’ble Supreme Court’s order. MRCC's submission notes that as per the Code while they are required to intimate prior to entering Indian Exclusive Economic Zone (EEZ) and Search and Rescue Region (SRR), they have informed only on 17th June, 2015 whereas the ship entered Indian waters on 11th June and was off Alang as of 19th June, 2015 evening at anchor. This unequivocally establishes serious breach of maritime security. Displaying contempt towards all the relevant laws and rules in the rule book, Gujarat Maritime Board and Gujarat Pollution Control Board apparently connived to allow the beaching of this questionable ship on 20th June, 2015. The examination by MoEFCC and Indian Coast Guard is pending.

The end-of-life ship in questions has bought by the same people who had bought the controversial Le Clemenceau, the asbestos laden French Aircraft carrier which had to be recalled from the Indian waters by the French authorities. The sellers and not undertaken the required prior decontamination in the country of export. MV Blossom has been beached on Plot No. 81.

Earlier, responding to a letter from ToxicsWatch Alliance (TWA) had alerted Union Minister of Environment, Forests & Climate Change through its letter dated 18TH June, 2015. TWA got a response dated 19th June, 2015 which was copied to Secretary, MoEFC.

TWA has demanded probe as to whether MV Blossom has undergone prior decontamination in the country of export as per Court’s order. The ship’s previous ownership, port of registry and insurance papers must be checked rigorously. TWA has shared documents with the concerned authorities that reveal how global shipping industry uses fake documents in complicity with ship owners and ship breakers are compromising our environmental and national security.

It high time government took serious note of end-of-life vessels which present fait accompli to the law enforcement agencies by anchoring and beaching without compliance with the Shipbreaking Code 2013, relevant Court’s order and Basel Convention. Such dubious behavior must be resisted.

Besides violation of Indian laws, this act of omission and commission is an act which is in contravention of Procedural Obligations under Article 6 of the UN's Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal (Basel Convention). It is clear that if a State of Export has been established then it will need to comply with Article 6 and its “prior informed consent” (PIC) regime. Coast Guard MRCC Mumbai has categorically established that this compliance has not happened in the case of entry of end-of-life vessel MV Blossom (ex-Orange Blossom).

Basel Convention imposes several overarching substantive obligations that empower Parties to act upon the shipbreaking issue besides the mechanics of the PIC procedures outlined in Article. 6. It applies to the transboundary movement of ships destined for final disposal or recycling when they contain hazardous materials defined as hazardous wastes in the Convention. As such, the Convention imposes substantive obligations on all the Parties often irrespective of the Party’s status, to prevent the movement and disposal of these ships-as-hazardous-waste in contravention of the Convention. It is noteworthy that India is a Party to the Convention.

It applies to wastes that are disposed of, are required to be disposed of or are intended to be disposed of, including ships. The phrase “intended to be disposed of” simply involves an interpretation of the Basel Convention’s definition of waste to specific known facts. This can be established in many ways, a contract, for example, can be evidence of intent to dispose. Additionally, acts, such as facsimile, phone call, telex or electronic mail, which show an intention to dispose, are also sufficient evidence of such intent. Preparatory actions such as cancellation or modification of insurance, a notice of destination to a port or notices given to crew can all evidence intent to dispose.

A ship destined for ship breaking is an obvious example of the kind of situation for which the objectives of the Basel Convention apply. The primary purpose of the Convention is to ensure Parties take responsibility for their own hazardous waste, establish hazardous waste disposal facilities (including recycling) within their country, minimize the generation and transboundary movement of hazardous waste, and ensure that they do not export the hazards, and damage to human health and the environment, to other countries. In most cases, ships exported for shipbreaking are a clear and convincing violation of these objectives. Therefore, it is incumbent upon Government of India to ensure that all ship sales are scrutinized to ensure that no attempted circumvention of the Convention exists.

Many of the Basel obligations will apply to Parties holding jurisdiction over owners, brokers, captains, crew, etc. The Basel Convention in its scope and obligations is not confined to prior-informed consent, but go far beyond this mechanical paperwork regime. All Annex VII countries, regardless of their status, e.g. State of Export, port state, etc., have obligations to take legal actions to prevent hazardous wastes, such as ships destined for disposal or recycling, from being exported and disposed (including recycling) in non-Annex VII countries.

If the owners intend to dispose of a ship-as-hazardous-waste prior to its arrival at the shipbreaking state, then the Basel Convention’s obligations cannot be frustrated by simply signing an agreement, e.g. sale, charter, etc. that disguises intent to dispose, or that avoids establishing such intent prior to export by avoiding signing a written agreement.

It is far too easy to hide or obscure “intent to dispose”. For instance, a ship owner may simply not announce such intent until the ship in question is in the shipbreaking state, thereby avoiding the “waste” definition, the transboundary movement and eventually, most of the obligations of the Basel Convention. In this scenario the ship’s crew and others usually are well aware of the fate of the ship destined for breaking or disposal. Cases that fit this potential circumvention scenario could be uncovered but would need to be scrutinized by the relevant authorities to do so.

The end-of-life ship itself is considered “hazardous waste” under Article 1(1) of the Basel Convention, and not only the individual hazardous substance that forms part of or that exists on board a vessel.

Basel Convention obligates the Parties, irrespective of their status (e.g. State of Export, Import, Transit, flag or port state), to prohibit or not perm it the export of hazardous and other wastes to Parties, which have prohibited the import of such wastes (Article 4(1)(b)). It obligates the Parties, irrespective of their status, to prohibit or not permit such export where the State of Import does not consent in writing to the specific import (Art. 4 (1) (c)). It requires that Parties must ensure that the transboundary movement of hazardous waste and other wastes is reduced to the minimum consistent with the environmentally sound and efficient management of such wastes, and is conducted in a manner which will protect hum an health and the environment against the adverse effects which may result from such movement (Article 4 (2)(d)). Irrespective of its status, a Party, is obligated not to allow the export of hazardous or other wastes if the Party has reason to believe that the wastes in question will not be managed in an environmentally sound manner (Art. 4(2) (e)).
Basel Convention defines “environmentally sound management” (ESM) as “taking all practicable steps to ensure that hazardous wastes or other wastes are managed in a manner which will protect hum an health and the environment against the adverse effects which may result from such wastes.” (Art. 2(8)) It must be noted that most shipbreaking operations around the world at this time do not meet this criterion.

Ships destined for shipbreaking contain significant quantities of asbestos, polychlorinated biphenyls (PCBs), hydraulic fluids, paints containing lead and/or other heavy metals, tributyltin or TBT antifouling coatings, contaminated holding tanks, and other substances rendering them hazardous waste and extremely dangerous to human health and the environment when scrapped in existing shipbreaking yards. Most of the shipbreaking is taking place in countries like India, where the conditions are documented to be exceptionally dangerous and damaging to the health of the workers, surrounding com m unity, and the environment.
India also has a legal obligation to prohibit illegal ship movements and must do so with respect to all persons, including corporations subject to its jurisdiction, including owners, charterers, brokers, shipping agents, and captains and crew, since under Article 4(4), each Party must take appropriate legal, administrative and other measures, including measures to prevent and punish conduct in contravention of the Convention. This is a crucial provision which should not be overlooked.
The Convention allows each Party to take further action against hazardous wastes, as the Convention does not prevent any Party from imposing additional requirements beyond what is mentioned in the Convention, provided that any additional requirements are consistent with the provisions of the Convention, and is in accordance with the rules of international law, in order better to protect human health and the environment (Article 4(11)).
It is well established that a state has jurisdiction over its territorial waters with respect to the preservation of the environment, prevention, reduction, and control of pollution, and protection of human health. It is noteworthy that Article 23 of the Straddling Stocks Convention, 1995 which provides that a port state has the right and the duty to take measures, in accordance with international law, to promote the effectiveness of sub-regional, regional and global conservation and management measures. There is nothing to prevent a port state, in the exercise of its sovereignty and in the observance of its obligation under the Basel Convention, from requiring such consent - such a requirement is applicable to the vessel while it is in port.
India being a part to the Basel Convention has consented to restrictions imposed under the Basel Convention.

Article 4(7) (a) binds flag states that are Parties to the Basel Convention. Furthermore, Article 94(1) of United Nations Convention on the Law of the Sea (UNCLOS) requires that every State shall effectively exercise its jurisdiction and control in administrative, technical and social matters over ships flying its flag. Article 94(2)(b) of the UNCLOS also requires that States shall assume jurisdiction under its internal law over each ship flying its flag and its master, officers and crew in respect of administrative, technical and social matters concerning the ship.
It is untenable to argue that if the hazardous waste is in the structure of the ship, the ship itself cannot be considered a hazardous waste, particularly if the hazardous material is a small concentration (by weight) of the total weight of the vessel. The Basel Convention supplies an intelligent definition in this regard, given that some highly toxic substances are disproportionately light in weight or concentration as compared to a ship’s total weight and mass, but are undiminished in their toxicity to humans and the environment, e.g. Asbestos, Tributyl tin, Dioxins etc.
Thus, it abundantly clear that port states have jurisdiction over foreign vessels under the Basel Convention to require that the consent be obtained from the state where the vessel will be disposed of , and other obligations under the Convention such as ascertaining that ship-as-hazardous-waste will be destined to environmentally sound management etc., and such jurisdiction is recognized in international law.

While Indian Coast Guard and Naval Intelligence have consistently raised security concerns from the entry of end-of-life ships for dismantling, the role of other agencies of the state and central government has compromised country's maritime and environmental security especially in a fragile coastal zone like Alang beach of Bhavnagar, Gujarat.
It is germane to recollect that Rajya Sabha was informed on 30th April, 2015 by Ahmed Patel , Member of Parliament that "The National Institute of Occupational Health would that 15 out of ninety four examined workers confirmed indicators of illness brought on by working with asbestos” on Alang beach, Bhavnagar. This study was done on the order of Supreme Court in the matter of end-of-life ships Blue Lady (ex-SS Norway, ex SS France) in which TWA was an applicant.
Notably, so far as rule of law is concerned, Basel Convention alone is valid and relevant to ship breaking industry.

TWA has been working on the issue of hazardous wastes and ship breaking for over decade. It has been an invitee and participant in the UN Conventions. It is an applicant before the National Human Rights Commission (NHRC), Parliamentary Standing Committee on Science, Technology, Environment & Forests, Parliamentary Petitions Committee, Parliamentary Standing Committee on Labour and relevant UN agencies besides Inter-Ministerial Committee on Ship breaking. It was the applicant before Supreme Court wherein the order for creation of the Shipbreaking Code was passed. TWA had appeared before the Supreme Court’s Monitoring Committee on Hazardous Wastes, Court’s Technical Experts Committee on Hazardous Wastes related to Ship breaking and pursued cases involving famous ships like RIKY (Kong Frederik IX), Le Clemenceau, SS Blue Lady, Platinum II and Exxon Valdez and others.
TWA appreciates and endorses MoEFCC’s position in the inter-ministerial Ship Breaking Scrap Committee, Ministry of Shipping wherein it was stated that “as a matter of policy they are not in favour of ship recycling industry breaking foreign ships in the country.” Sadly, this position is not being applied by concerned ministries when it comes to implementation. The case of MV Blossom starkly demonstrates how India’s maritime and environmental security is being compromised with impunity. TWA has written to Ministry of Defence and Ministry of Shipping in this regard. It sets a very unhealthy precedent and opens flood gates for such dead and dubious ships due to conniving and complicit officials. It is high time a high level probe unearths the rot and sets it right before it is too late.

For Details: Gopal Krishna, ToxicsWatch Alliance (TWA), Mb: 08227816731, 09818089660, E-mail-1715krishna@gmail.com, Web:www.toxicswatch.org

Proposed Waste Management Rules biased against poorer classes, waste continues to follow path of least resistance

Written By Gopal Krishna on Friday, June 05, 2015 | 11:51 PM

Why Waste Rules being framed by Environment Ministry and Waste Policy by Urban Development Ministry


Promotes environmental lawlessness & iniquitous & unscientific Waste, Plastic Mgt & Sanitation practices

Legalizes continued dumping and burning of waste as solution, not a problem 


Rules look at sub urban & rural areas as dumping grounds for urban waste


At a Round Table on “Politics of Waste Management & Draft Solid Waste Management Rules, 2015 and Draft Plastic Waste Management Rules, 2015” it was decided that Kachra Intzamia Muhim (Waste Management Campaign) will jointly submit comments on them and provide an alternative legal framework to deal with waste crisis. It emerged that both the Rules farmed by Union Ministry of Environment, Forest and Climate Change suffer from poverty of environmental imagination. It fails to underline that Indian solid waste has hazardous waste characteristics. Its faith in building landfills in the sky remains unshaken despite repeated failures in waste to energy projects. It does not factor in the recommendations on Integrated Plant Nutrient Management which had advanced a progressive argument for securing soil nutrients from composts from waste incineration technologies that turns it into pollutants.

The Rules acknowledges that the mandate of waste management lies with Urban Development Ministry by stating that it should “formulate National Policy and Strategy on Solid Waste Management in consultation with stakeholders”. Shouldn’t the Solid Waste Management Rules be framed by the Urban Development Ministry as well. Why Rules and Policy should on the same subject of waste management is being framed by two different ministries namely, Environment Ministry and Urban Development Ministry.  It underlines the lack of holistic approach in dealing with waste crisis.

Both the Rules fail to aim at reducing plastic use. They fail to provide mechanism for the implementation of Extended Producer Responsibility (EPR). Draft Solid Waste Management Rules fails to take lessons from Suryapet, Telangana and Nammkal in Tamil Nadu where Zero Waste philosophy has been adopted. It refuses to acknowledge and learn from admitted failures in Timarpur and Okhla in Delhi. Draft Plastic Waste Management Rules fails to learn from success in Himachal Pradesh and Sikkim and failures in Delhi and elsewhere. The provision in the Draft Solid Waste Management Rules for the segregation of waste into four categories- bio-degradable or wet waste, non bio-degradable or dry waste, domestic hazardous wastes and construction and demolition waste by the waste generator is noteworthy.  The Draft Rules has extended its jurisdiction. It applies “to every urban local body, all statutory towns, outgrowths in urban agglomerations as declared by the registrar general & census commissioner of India, notified areas/notified industrial townships, notified area committees, area under Indian railways, defense cantonments, special economic zones in the country and every waste
generator.”

If the idea is to seek sites for landfill and waste processing facilities beyond municipal limits then this is likely to have grave political implications. The Rules fails to provide exact criteria for identification for such facilities. The deafening silence of framers of the Draft Rules and the foreign funded NGOs who were involved in it exposes their class bias.

The Rules must make it mandatory for the waste of each district to remain in that very district so that waste does not shift to poorer localities by adopting Not In My Back Yard (NIMBY) syndrome. The Rules must provide for compulsory six monthly public health audit of communities living in the vicinity of waste treatment facilities in general and environmental and occupational health audit of formal and informal workers involved in the waste management. There were serious questions raised about the need for having two separate Rules when plastic is at the focal point for both of them.  The committee on whose recommendations these Rules have been  framed have revealed itself to be a supporter of status quo. It disregards public health in general and environmental and occupational health in particular in its framing. The Rules continues to promote movement of waste from richer areas to poorer areas. It pays lip service to waste minimization, waste segregation, composting but ignores the fact that Ministry of New and Renewable Energy has already distorted waste management by making misplaced combustion technology based energy as the driving concern. It disregards the composition of the Indian waste and promotes burning and burial of waste.

It provides standards for emissions of heavy metals and persistent organic pollutants but ignores the fact that Central Pollution Control Board and most State Pollution Control Boards do not have functional laboratories to test the emissions and to monitor compliance. 

Members of All India Kachra Intzamia Muhim Manch examined the Draft Solid Waste Management Rules, 2015 and Draft Plastic Waste Management Rules, 2015 noted the role which Ministry of Chemicals and Fertilizers is being assigned for supporting composts. Sadly, unmindful of its distorting effect, MNRE provides Rs 1.5 crore/MW for energy generation from waste. No such incentive has specifically been provided.

The role of Central Pollution Control Board (CPCB) in approving new technologies has been mentioned both under tasks assigned to CPCB and State Pollution Control Boards, Pollution Control Committees but it does not factor existing experience in this regard. The case of use of unapproved technology in Jindal’s Okhla based waste to energy project is quite germane in this regard.

The Draft Solid Waste Rules reads: “In case of new technologies, where no standards have been prescribed by the Central Pollution Control Board, State Pollution Control Board or Pollution Control Committee, as the case may be, shall approach Central Pollution Control Board for getting standards specified.” The fact is that although a new Chinese technology is being used at Okhla, Delhi Pollution Control Committee is yet to approach CPCB in this regard. 

The Draft Rules provides that CPCB should “review the proposals of state pollution control boards or pollution control committees on use of any new technologies for processing, recycling and treatment of solid waste and prescribe performance standards, emission norms for the same”.   The fact is that CPCB has admittedly failed to review the Chinese technology in question and “prescribe performance standards, emission norms for the same” with no legal consequences. The participants also objected to reference to waste workers as waste pickers in both the Rules.  Although several years have passed waste workers have not been provided legal status despite National Environmental Policy 2006 promise to provide legal status to waste workers. Waste workers provide invaluable environmental service by ensuring resource and material recovery. In such a situation of environmental lawlessness and social injustice, the proposed Rules do not inspire even an iota of confidence. 

The Draft Rules mention Metal Recovery Facility (MRF). It ought to have made provision for handing MRF to co-operatives of waste workers. The Rules refer to user fee without clarifying whether it would be based on the quantity or type of waste generated by waste producers. The Rules pay lip-service to incentives for decentralised waste treatment facilities. Its continued reliance on incineration Refuse Derived Fuel Technologies shows that ministry’s love affair with costly centralised facilities for treating and disposing municipal wastes is far from over. 

The reference to “viability gap funding” in the Draft Rules drew criticism from participants. This implies that the ministry has envisaged financial support “to be paid to the concessionaire or operator of a solid waste processing facility” in order “partly cover the difference between market price of the output and its production cost plus reasonable profit margin.” The integrated zero waste management waste practices worldwide reveal that saner waste management practices generate both revenue and livelihoods in such a scenario such promotion of public private partnership (PPP) points to a deeply flawed fiscal design.

The Round Table was organized by All India Kachra Intzamia Muhim Manch.

For Details: Dharmendar Yadav, Lokadhikar, Mb: 9899044249, E-mail:lokadhikar.org@gmail.com, Gopal Krishna, ToxicsWatch Alliance (TWA), Mb: 9818089660, Web: www.toxicswatch.org, E-mail-1715krishna2gmail.com

P.S:  TWA has consistently demanded closure of Jindal's incineration based waste to energy plant  in Okhla and is opposed to its mere relocation. The issue is closure of the municipal waste incinerator in the residential and ecologically area in this specific case. It is quite parochial to argue in terms of location alone. It cannot agree with relocation approach especially with regard to municipal waste incinerators. TWA had expressed it even when it was first articulated when RWA in question had filed its writ petition in 2009. We have been demanding closure of the Okhla incinerator since March
2005. It is myopic to articulate the demand in terms of shifting a POPs & heavy metals emitting municipal waste incinerator plant.  The Draft Solid Waste Management Rules, 2015 promotes status quo. RWA in question must pay heed to the proposed Rules before articulating its stance on incineration based WTE plants. Scientific literature on POPs & heavy metals has established that they
are long distance travellers and they do not require passport to travel. Its a sad commentary on how RWAs conceptualize municipal waste management. How can waste of Okhla, South Delhi district be shifted elsewhere in poorer localities as a a sane waste management practice. In fact in one particular meeting at Union Ministry of Environment, Forests & Climate Change (MoEFCC), the RWA's position on shifting of location of this plant in question was demolished by one MoEFCC official at a meeting convened on the orders of Jairam Ramesh, the then Environment Minister by referring to Master Plan documents of Delhi. In order to respond to him, TWA was asked by RWA representatives to advance arguments against the incinerator technology at that meeting. Such position has led to setbacks for RWA before Delhi High Court and now the NGT. But tactically TWA agrees to disagree and still work to ensure closure of waste incinerator.

Round Table on “Politics of Waste Management & Draft Solid Waste Management Rules, 2015 and Draft Plastic Waste Management Rules, 2015

Written By Gopal Krishna on Saturday, May 30, 2015 | 6:52 AM

This is to cordially invite you to a Round Table on “Politics of Waste Management & Draft Solid Waste Management Rules, 2015 and Draft Plastic Waste Management Rules, 2015” on Thursday, 4th June, 2015 from 10.30 AM
In view of the fact that central government has issued a notice seeking comments on these proposes Rules, it is incumbent onorganizations, researchers, activists and workers unions to examine
its implications.The Round Table is being convened towards that end. The text of Draft
Solid Waste Management Rules, 2015 is available at:
http://www.moef.nic.in/sites/default/files/SWM%20Rules%202015%20-Vetted%201%20-%20final.pdf

The text of Draft Plastic Waste Management Rules, 2015 is available at
http://www.moef.nic.in/sites/default/files/Plastic%20Waste%20Management%20Rules%202015-forPrinted%20version.pdf

We request all the invitees to kindly read the Draft Rules beforehand.
Kindly confirm your presence to ensure arrangements.
Date: 4th June, 2015Thursday
Time: 10.30 AM
Venue: INSAF Library, First Floor, A-124/6, Katwaria Sarai, New Delhi-110016

The Round Table is being organized by All India Kachra Intzamia Muhim Manch (AIKIMM), a joint effort of voluntary organizations, researchers, activists and workers associations.

For Details:
Dharmender Yadav: 9899044249
Gopal Krishna: 9818089660

Health report of workers exposed to radiation at Indira Gandhi International Airport’s cargo terminal must be disclosed


May 30, 2015: Given the fact that it is now being claimed that there was no radioactive radiation at Indira Gandhi

International Airport’s cargo terminal, there is a compelling reason for the disclosure of health report of workers who were exposed while handling the consignment. The occupational health status of these workers is relevant because it will be a definite indicator of the reasons for their ill health.
 
The core issue which merit attention is whether Prior Informed Consent procedure was followed in the transport of the consignment from Turkey. This is required to ensure that such incidents are not repeated and accountability for acts of omission and commission is fixed and a stringent Prior Informed Consent procedure is put in place after conducting vulnerability mapping of all the air ports, ports and border posts of the country.

India is a signatory of ILO’s Radiation Protection Convention, 1960 concerning the protection of workers against Ionising Radiations but it does not apply to radioactive substances, whether sealed or unsealed, nor to apparatus generating ionising radiations which substances or apparatus, owing to the limited doses of ionising radiations which can be received from them, are exempted from its provisions.

Its effects depending on dosage includes temporary sterility and permanent sterility of testicles, sterility of ovaries, impaired vision (cataracts) and depression of haemopoiesis in bone marrow. It can also result in acute irradiation syndrome, characterized by digestive disorders like nausea, vomiting and diarrhea.

It is an admitted fact that personnel handling radioactive sources deployed in medical and scientific fields may be exposed through skin and wound contamination or inhalation or ingestion of radioactive materials. The exposures can happen from external irradiation, inhalation, skin contamination from the radioactive vapours and dusts. The health effects of ionizing radiation depend on the dose level received and the dose rate. When the dose exceeds a given threshold and the dose rate is high. Notably, severity of the effects is proportional to the dose but it is dependent also on the dose threshold for specific organ.

The question as whether there is indeed a threshold dose (i.e., a dose below which there is no effect) is yet to be satisfactorily answered. The damage to genetic material (DNA) caused by spontaneous errors or environmental factors are constantly repaired but this repair is not always effective, and is likely to result in malignant transformation of cells as per literature of International Labour Organization (ILO) Encyclopedia of Occupational Health and Safety.

The exposure to ionizing radiation can happen both to occupationally exposed persons and the general public. UN Scientific Committee on the Effects of Atomic Radiation had estimated that there are millions of workers are occupationally exposed to ionizing radiation. India must identify must identify the workers who are exposed in the country.

India must have a country wide registry of radiation accidents. Any accident that results in exposure exceeding 0.25 Sievert (Sv), or skin exposures exceeding 6 Sv or exposure of other tissues and organs exceeding 0.75 Sv must be included in this registry. The accidents that have resulted in lower exposures must also included for maintaining the record of exposed persons whose state of health over short and longer period can be ascertained empirically for verification of efficacy of threshold limit in terms of consequences of exposure. The registry must provide data on frequency of radiation accidents and the number of exposed individuals.  There is need for epidemiological studies on effects of low-dose irradiation (below 0.2 Sv) and low dose rates.

There is a need for maintenance of a comprehensive life-cycle inventory of radioactive sources which includes information on both the sources’ nature and location. The health records of workers and general public who handle such sources or substances or in their proximity should be put in a form standardised at the national level. The safety guidelines and recommendations for the use of radioactive sources in industry, medicine and research should be disclosed and rigorously implemented.

For Details: Gopal Krishna, ToxicsWatch Alliance (TWA), Mb: 9818089660, 08227816731, E-mail: 1715 krishna@gmail.com, Web: www.toxicswatch.org

Delhi Govt refuses to renew license of Synergy company’s bio-medical waste incinerator, High Court refuses relief to the Okhla plant

Written By Gopal Krishna on Friday, May 29, 2015 | 4:10 AM


May 29, 2015: Following Delhi Government’s refusal to renew license of Synergy company’s bio-medical waste incinerator, Delhi High Court has refused relief to the Okhla plant. It termed company’s application for relief as infructuous, ineffective, unproductive and unfruitful.  

The case against Chief Secretary, Government of NCT of Delhi and Managing Director, M/s Synergy Waste Management Pvt Ltd was disposed off on 28th May, 2015 following closure of Bio-Medical Waste Incinerator located in the vicinity of DDA Flats, Sukhdev Vihar, Okhla, New Delhi due to expiry and non-renewal of its license after 18th May, 2015. In a remarkable move, Delhi Government had kept itself ready to face this situation. It illustrates how peoples’ resistance can compel the government to listen to them.

An Office Memorandum (OM) dated 15th May, 2015, Delhi Pollution Control Committee (DPCC) shows that the state government had planned for “redistribution of area among two common bio-medical waste treatment facilities (CBMWTFs) in Delhi, in the vent of closure of Synergy Waste Management Pvt Ltd. on 18.05.2015.” The OM was signed by Kulanand Joshi, Member Secretary, DPCC. The OM is attached. This was an outcome the meeting residents had with Delhi Chief Minister Arvind Kejriwal.

It is noteworthy that the attached Aam Aadmi Party (AAP)’s manifesto for Kalkaji had recognized the public health concerns emanating from this polluting plant and had promised to make efforts and struggle with Okhla residents against it.

Notably, Delhi High Court had re-ordered immediate closure of biomedical waste incinerator plant Sukhdev Vihar, Okhla while the Civil Contempt Petition No 102/2014 filed in Writ Petition (C) No. 6976 of 2008 against Chief Secretary, Govt. of NCT of Delhi and Managing Director, Synergy Waste Management Pvt Ltd in the matter of Dioxins emitting biomedical waste incinerator in Sukhdev Vihar, Okhla.

After Delhi High Court's judgment dated 15th January, 2013 established the adverse health impacts from the incinerator based on existing medical literature, the fate of M/s Synergy Waste Management Pvt. Ltd. (SWMPL) which operated Bio-Medical Waste Incinerator located in the vicinity of DDA Flats, Sukhdev Vihar, Okhla, New Delhi was sealed. This order had come in response a Public Interest Litigation (PIL) was filed in 2008 seeking its closure. But when Chief Secretary, Government of NCT of Delhi and Contemnor no.1 and Neeraj Agarwal, Managing Director, M/s Synergy Waste Management Pvt Ltd, Contemnor No.2 did not comply with the order in contempt of this Court’s Judgment, a Civil Contempt Petition was filed. A review petition No. 111/2013 filed by the company was dismissed on 27th February, 2013.

The High Court judgment refers to 'The summary of "Epidemiological Studies on Adverse Health Effects Associated with Incineration" would show that medical waste incinerators are a leading source of dioxins and mercury in the environment and there is link between incinerator emissions and adverse health impacts on incinerator workers and residents living around the incinerators.'

The observations made in the judgment will have far reaching implications. It reads: "Both older and more modern incinerators can contribute to the contamination of local soil and vegetation with dioxins and heavy metals. In several European countries, cow"s milk from farms located in the vicinity of incinerators has been found to contain elevated levels of dioxin, in some cases above regulatory limits. Increased levels of dioxins have been found in the tissues of residents near to incinerators in the UK, Spain and Japan. At an incinerator in Finland, mercury was increased in hair of residents living in the vicinity. Children living near a modern incinerator in Spain were found to have elevated levels of urinary thioethers, a biomarker of toxic exposure. " It notes that "After 2 years of operation of incinerator, dioxins levels were found increased by about 25% in both groups living between 0.5 to 1.5 and 3.5 to 4.0 km away (201 people) of people. In the repeat analysis, the increase was in the range of 10-15%".

The judgment records that "Mothers living close to incinerators and crematoria from 1956 to 1993" showed "increased risk of lethal congenital abnormalities, in particular, spinal bifida and heart defects, near incinerators: increased risk of stillbirths and anacephalus near crematoria".

With regard to "Residents from 7 to 64 years old living within 5 km of an incinerator and the incinerator workers" the judgment observes, "Levels of mercury in hair increased with closer proximity to the incinerator during a 10 year period".  The judgment recorded that "Residents living within 10 km of an incinerator, refinery, and waste disposal site" showed "Significant increase in laryngeal cancer in men living with closer proximity to the incinerator and other pollution sources". The *"Residents living around an incinerator and other pollution sources" showed "Significant increase in lung cancer related specifically to the incinerator". *The *"People living within 7.5 km of 72 incinerators" displayed "Risks of all cancers and specifically of stomach, colorectal, liver and lung cancer increased with closer proximity to incinerators".

The struggle of residents and environmental groups is far from over. The judgment is quite relevant for the upcoming hearing in the National Green filed by the resident’s welfare association (RWA) of Sukhdev Vihar, Okhla against the municipal waste incineration power plant is being operated by Delhi's Timarpur-Okhla Waste Management Co Pvt Ltd (TOWMCL) of M/s Jindal Urban Infrastructure Limited (JUIL), a company of M/s Jindal Saw Group Limited.

ToxicsWatch Alliance (TWA) has been demanding closure of waste incinerators plants because shifting a polluting unit of factory does not make it non-polluting. Responding to a letter of TWA Union Environment Minister, Prakash Javadekar has promised to look into the possibility of Bhopal like disaster due Jindal’s plant in Okhla operating admittedly in residential areas without any Disaster Management Plan using unapproved and untested Chinese technology.  

Meanwhile, National Human Rights Commission (NHRC) is pursuing Case No.  8296/30/10/2014 filed by TWA which  has been campaigning against this toxic Dioxins emitting plant since 2005 and is pursuing a case against the toxic threat from municipal waste incinerator plants in Okhla, Narela-Bawana and Ghazipur.

Notably, owing to public health concerns, Delhi’s Deputy Chief Minister has visited the hazardous Dioxins emitting plants in Okhla and Ghazipur. It is high time the government in the national capital territory revised the tried, tested and failed approach adopted for waste management.    

For Details: Gopal Krishna, ToxicsWatch Alliance (TWA), Mb: 9818089660, 08227816731, E-mail: 1715 krishna@gmail.com, Web: www.toxicswatch.org





Companies Act 2015 continues to facilitate corporate funding for political parties and co-option of NGOs

Written By Gopal Krishna on Thursday, May 28, 2015 | 5:41 AM

Provision for CSR in the Act needed to be revisited

The Companies (Amendment) Act, 2015 has received the assent of the President. It has been notified in the Official Gazette with effect from 26th May, 2015. Companies (Amendment) Bill, 2014 which was introduced to amend Companies Act, 2013 was approved by the Lok Sabha on17th December, 2014 and by the Rajya Sabha on 13th May, 2015. This Act along with the 2013 Act merits attention of all the lovers of true democracy. Notably, the Contesting Election on Government Expenses Bill, 2012 is pending in the Rajya Sabha which was long due for putting a check on increasing use of black money in elections and political activities but the Companies Act has emerged as a threat to the idea of State funding of elections. Yet another opportunity has been lost to deal with the menace of black money with the passage of the Act.
Union Cabinet chaired by the Prime Minister, Narendra Modi gave its approval for the Companies (Amendment) Bill, 2014 on 29th April, 2015. With this 2013 Act has received the seal of approval from the NDA government. There was a need for replacing corporate donation for political parties with provision of corporate donation for government’s electoral fund that can be used for State funding of elections. But the government accepted the status quo in general.  Thus, regime has changed but the order has remained the same.
The Companies Act reveals double speak, insincerity and inconsistency of the ruling parties and opposition parties. The Companies Act should have banned corporate funding for electoral campaigns but this has not happened. This is contrary to several reports of the Parliamentary and government's committees which recommended State funding of elections to deal with black money.
The root of rampant corporate crimes committed with impunity, environmental destruction, poisoning of food chain and human rights violations by security forces has been traced to corporate funding of political parties. In the aftermath of industrial disasters, frauds and war crimes by companies world over, this Act merits rigorous scrutiny by all sections of legislatures and society.
It may be noted that there is a provision in the Act that reads: "Notwithstanding anything contained in any other provision of this Act, a company, other than a Government company and a company which has been in existence for less than three financial years, may contribute any amount directly or indirectly to any political party: Provided that the amount referred to in sub-section (1) or, as the case may be, the aggregate of the amount which may be so contributed by the company in any financial year shall not exceed seven and a half per cent of its average net profits during the three immediately preceding financial years".
It may be recalled that two contradictory things happened in the Lok Sabha on 14th December, 2011. Companies Bill, 2011 was introduced by Dr Veerappa Moily as a Union Minister in the afternoon that made provision for corporate funding of parties. Within hours of the introduction of this Bill, Manish Tiwari, National Spokesperson of the Indian National Congress who stood up to speak about UPA's seriousness in dealing about Black money stated, "I feel ashamed to state that black money which is linked to our advertisement policy is related to electoral finance that needs to be rectified."

The 2013 Act was passed with the endorsement of Yashwant Sinha headed Parliamentary Standing Committee on Finance. The 2015 Act has the endorsement of Indian National Congress in the Parliament. 

The collusion between major parties that was witnessed in the report Indrajit Gupta headed Parliamentary Committee remains unaltered. The silence of the left parties is quite deafening in this regard. In the light of this development, the reluctance of the political parties except Communist Party of India to come under the ambit of Right to Information Act is not inexplicable.
The Act gives greater role to shareholders and promotes shareholder democracy of sort.
It is explicable as to this government forgot about the recommendations of the Group of Ministers (GoM), headed by the then Union Home Minister, L.K. Advani, to consider recommendations of the Indrajit Gupta headed Committee on State funding of elections during the Bhartiya Janata Party led National Democratic Alliance (NDA) Government. The Committee on State Funding of Election was headed by the former Union Home Minister and veteran CPI leader, Indrajit Gupta, had submitted its report to the Government on 14th January, 1999 favouring State funding of elections.
It merits recalling that at the Convention of Indian Youth Congress on November 29, 2011, Sonia Gandhi, Chairman, Indian National Congress reiterated the need for state financing of elections as a measure against corruption in the electoral process. Earlier, she had demanded it at the Congress plenary in December 2010. The Union Minister for Law & Justice informed the Lok Sabha on November 28, 2011 that --Group of Ministers constituted by the Central Government is considering measures that can be taken by the Government to tackle corruption which inter alia include the introduction of state funding of elections. The Act shows that what Sonia Gandhi had told the Convention of Indian Youth Congress has not been incorporated in the Act. BJP led NDA government wasted the opportunity of rectifying the Act.
It is evident that both Congress led UPA and BJP led NDA are preaching one thing and practicing just the contrary. The passage of this legislation re-legitimizes corporate funding of political parties instead of reversing the trend.
There is a provision in the Ac which appears quite dangerous. It reads: The Board of Directors of a company may contribute to bona fide charitable and other funds: Provided that prior permission of the company in general meeting shall be required for such contribution in case any amount the aggregate of which, in any financial year, exceed five per cent of its average net profits for the three immediately preceding financial years." This is a masterstroke to co-opt bonafide charitable institutions and turn them into fake public interest institutions who serve corporate interests. Both are divergent interests for sure.

While the hollowness of Concept of Corporate Social Responsibility (CSR) which is an exercise in advertising and brand positioning is well known, the same has been introduced in the Companies Act. The provision regarding CSR reads" Every company having net worth of rupees five hundred crore or more, or turnover of rupees one thousand crore or more or a net profit of rupees five crore or more during any financial year shall constitute a Corporate Social Responsibility Committee of the Borad consisting of three or more directors, out of which at least one director shall be an independent director. The Board's report shall disclose the composition of the Corporate Social Responsibility Committee. The Corporate Social Responsibility Committee shall,—(a) formulate and recommend to the Board, a Corporate Social Responsibility Policy which shall indicate the activities to be undertaken by the compay as specified in Schedule VII the company spends, in every financial year, at least two per cent of the average net profits of the company made during the three immediately preceding financial years, in pursuance of its Corporate Social Responsibility Policy.
Notably, Schedule VII mentioned in the clause provides a list of "Activities which may be included by companies in their Corporate Social Responsibility Policies" These activities relate to:— (i) eradicating extreme hunger and poverty; (ii) promotion of education; (iii) promoting gender equality and empowering women; (iv) reducing child mortality and improving maternal health; (v) combating human immunodeficiency virus, acquired immune deficiency syndrome, malaria and other diseases; (vi) ensuring environmental sustainability; (vii) employment enhancing vocational skills; (viii) social business projects; (ix) contribution to the Prime Minister's National Relief Fund or any other fund set up by the Central Government or the State Governments for socioeconomic development and relief and funds for the welfare of the Scheduled Castes, the Scheduled Tribes, other backward classes, minorities and women; and (x) such other matters as may be prescribed.
The activities that have been mentioned above are functions of the State towards the citizens. This is a case of outsourcing functions of the government to companies. It may have been better if instead of letting companies do CSR activities if the same 2 % of their annual profit is collected as tax to create a fund for undertaking state funding of elections? Prime Minister's National Relief Fund itself can collect it as Government of India did acting as parens patriae (guardian of the nation), passed the Bhopal Gas Disaster (Processing of Claims) Act, 1985 in the case against USA's Union Carbide Corporation, currently owned by USA's Dow Chemicals Company. A five judge bench of the Supreme Court upheld that the State had rightly taken over the exclusive right to represent and act on behalf of every person entitled to make a claim in the Charan Lal Sahu Vs Union of India and others on 22 December, 1989. The Companies Bill should provide for “creation of an Industrial Disaster Fund” to comply with this very order in the aftermath of world worst industrial disaster before the nuclear disasters of Chernobyl and Fukushima. 

The political parties that will collect up to 7.5 % of annual profits of the companies as donations will not have the political will to regulate CSR activities and will not be able to acts in any case. A regime that is elected based on state funding of elections can undertake the above welfare activities and act as a genuine parens patriae. Citizens rightfully deserve it. The proposal of such CSR activities as acts of charity is an assault on provisions of the constitution that provides for entitlements for life and environment as a fundamental right.
The provision of corporate funding for political parties must be looked at in the backdrop of the decision of Supreme Court of USA on January 21, 2010 in the Citizens United case, which was denounced by US President Barack Obama, apparently for the sake of record. The US Court considered whether there could be a ban on corporations using their general treasury funds for elections-related expenditure. A majority (5-4) of the Court ruled that such a ban was violative of the right to free speech. Essentially, the US Court struck down certain campaign-finance limits as a violation. The impact of this ruling is that corporate entities in the USA are free to use their general treasury funds to incur election-related expenditure, in a departure from past precedents. It also raised a question do corporations have free-speech rights, just as do individuals? If this is the path of corporations very soon, indeed "We The People" will be excluded from even representative government because of Corporate Personhood. It was said in the newspapers in USA that it would turn the political class into prostitutes.

In connection with this, the six page long The Contesting Election on Government Expenses Bill, introduced by Prabhat Jha, Member of Parliament merits attention.
Contrary to the wisdom of the Bill, this Act is aimed at doing away with the requirement for filing a declaration by a company before commencement of business or exercising its borrowing powers and rationalizing the procedure for laying draft notifications granting exemptions to various classes of companies or modifying provisions of the Act in Parliament, in order to ensure speedier issue of final notifications. This Bill reveals the incestuous relationship between business enterprises and the ruling parties.   
Instead of setting matters right, the official amendments contained in the 2015 Act addresses issues related to ease of doing business and puts in place a speedier process for approval of draft notifications for providing exemptions etc. from specific provisions of the Act to a class of companies.  
There is a logical compulsion for amending the Companies Act to outlaw the provision for corporate funding to political parties and substitute it with the provision of state funding for the political parties as envisaged in The Contesting Election on Government Expenses Bill.
Following footsteps of the trends in USA, the provisions in the Companies Bill is all set to turn most political parties into brothels wherein made-to-order legislations will have a field day if it is not the case already. Given this trend will it be surprising if very soon there will be approval for foreign direct investments in myriad disguises to facilitate setting up of legislation manufacturing factories?

Democratic institutions can only be strengthened if political parties and other political organizations are given a priority by the state through fiscal support for becoming a democracy given the fact that it is always a work in progress. Studies based on large data sets on political financing in more than 40 democracies provide empirical account of campaign finance and have brought to light hidden aspects of politics and questioning widespread beliefs about political finance, such as the rapid increase of campaign costs. The problems associated with the high cost of election campaigns and the establishment of a balanced and transparent system for their financing merit state's attention.
The experience from contemporary European democracies shows that political parties are necessary and desirable institutions for democracy and direct involvement of the state through financing election campaigns is transforming parties from their status as voluntary private associations into parties as public utilities.
The legislation in question does not appreciate that it is the dependence of political parties on non-state actors for financing elections that determines their electoral and non-electoral performance. It is a flawed legislation which is compromising the political outcomes through an inherent political engineering which is co-terminus with property based citizens' rights.
While it has been admitted that --there is no guarantee that economic prosperity ensures democratization, the ulterior motive of the sponsors of electoral reforms is the former and not the latter. In the post-Citizens United era and in the era of legislated corporate funding through Companies Act is an act of rewriting the political geography and will reveal its residual democratic content.
By shaping not only the strategies, rational choice but also their goals, political parties as institutions structure political situations and leave their own imprint on political outcomes. This significance underlines the inference that parties cannot be left at the mercy of non-state actors. As long as these actors shape the outcome no matter who wins in electoral battles, democracy is not a winner because our deformed political system is turning legislatures into a forum for legalized bribery. The way out could be to recommend that these very corporate donations be pooled into an electoral fund which can be used for state funding of elections.


For Details: Gopal Krishna, ToxicsWatch Alliance (TWA), Mb: 08227816731, 09818089660, E-mail-1715krishna@gmail.com, Web: www.toxicswatch.org

 
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