In this piece, one is using the word burning and incineration to mean the same. Generally, the former means open burning and the latter is used to refer to combustion under claimed "controlled" conditions of a furnace using state-of-art technology.
With regard to burning of waste, Supreme Court of India has ruled in the Writ Petition (Civil) 657 of 1995 on 14th October, 2003 that "There should be immediate ban of burning of any material whether hazardous or non-hazardous on the beach." Under the Environmental Protection Act, 1986, the Bio-Medical Waste (Management and Handling) Rules, 1998, clearly specify a ban on burning of chlorinated plastics saying " chlorinated plastics shall not be incinerated".
With specific reference to Municipal waste, there is no ban on burning of plastic waste as such but the above provisions can be used creatively.
Burning of unsegregated waste laden with plastics is quite a common practice in India including PVC. (poly-vinyl-chloride) that cause emission of dioxins. It is noteworthy that PVC accounts for the highest percent (26%) of the total consumption of plastics in India.
There are different kinds of plastics with different results on burning. It could result in a hydrocarbon, or cyanides, or PCB’s, or lots of other substances. It would be difficult to know from a mixed waste as to what are the likely volatiles it would create. Notably, volatiles released from plastics in house fires are a major cause of death.
The fact remains Government of India and plastic industry promotes waste burning (incineration) as a matter of its ideal policy although Dioxins are released mostly from burning of chlorinated plastics and wastes. Compostable part of garbage assists in the production of dioxin that requires organic matter, chlorine and reactive thermal environment. Dioxins causes various cancers and a big health hazard.
Exposure to dioxin causes skin rashes, discoloration of skin, liver damage etc. Dioxin has also been responsible for psychological damage, reduced level of male sex hormone and cardiovascular deterioration.
Still legally, it can be dealt with using the Indian Penal Code and Criminal Procedure Code. The Code has dealt with solid waste management under Chapter XIV ‘of offences affecting the public health, safety, convenience, decency and morals’. Given the fact that solid waste gives rise to various type of diseases and is dangerous to public health, it has been treated as ‘public nuisance’ and has been made punishable. This can be applied but there is no direct section of the problem of solid waste in the Code.
It can be addressed also under Section 133 of the Criminal Procedure Code that deals with ‘removal of nuisance’ and empowers the Sub-Divisional Magistrate or any executive Magistrate, on receiving report/information, to make order to remove the public nuisance and desist from carrying any trade, business which is causing public nuisance. In fact courts have made use of Section 133 of the Criminal Procedure Code to deal with the problem of waste.
In the famous case of Municipal Corporation, Ratlam v. Shri Vardhichand Justice Krishna Iyer declared that ‘…the guns of Section 133 go into action wherever there is public nuisance. The public power of the Magistrate under the Code is a public duty to the members of the public who are victims of the nuisance.’ If the order is defied or ignored, Section 188, I.P.C. comes into penal play. It was further, observed that ‘imperative tone of S. 133, Cr.P.C. read with the punitive temper of S. 188 I.P.C. makes the prohibitory act a mandatory duty.’ The Court also pointed out that Article 47 of the Indian Constitute makes it a paramount principle of governance that ‘steps are taken for the improvement of public health as amongst its primary duties.’
In the Dr. B.L. Wadehra v. Union of India case, the court said, ‘resident of Delhi have a statutory right to live in a clean city.’ It was first case where Court dealt with the right to clean environment of the citizens and obligatory duty of the government and its instrumentalities to keep the city and town clean but the condition of Delhi has not improved and now it is resorting to promotion of waste incineration.
In Almitra case related to solid waste disposal management of four metropolitan cities—namely, Mumbai, Chennai, Calcutta, Delhi and Bangalore, the court expressed its unhappiness for non-compliance of its directions issued in Dr. B.L. Wadhera (1996) case. The court against issued ten directions ‘in addition to not in derogation to the order passed in Dr. B.L. Wadhera case’ for the national capital region. These orders too have not been complied with so far, there were deadlines set that have not been met as well.
The Municipal Solid Wastes (Management and Handling) [MSW]Rules, 2000 under the Environmental Protection Act, 1986 has defined ‘municipal solid waste’ as ‘commercial and residential wastes generated in a municipal or notified areas in either solid or semi-solid form including treated bio-medical wastes but excluding industrial hazardous wastes.
The MSW Rules, 2000 came in response to these court orders. Rule 4 of the MSW Rules makes every ‘municipal authority’ responsible to implement those rules and ‘for any infrastructure development for collection, storage, segregation, transportation, processing and disposal of municipal solid waste.’ Schedule II - I(vii) of MSW Rules says "Waste (garbage, dry leaves) shall not be burnt;"
Schedule II - 5(i) says "The biodegradable wastes shall be processed by composting, vermicomposting, anaerobic digestion or any other appropriate biological processing for stabilization of wastes. It shall be ensured that compost or any other end product shall comply with standards as specified in Schedule-IV"
Schedule II - 5(ii) says -"Mixed waste containing recoverable resources shall follow the route of recycling. Incineration with or without energy recovery including pelletisation can also be used for processing wastes in specific cases..."
It also requires that the municipal authority or an operator will have to seek permission for setting up waste processing and disposal facility including landfills from the State Pollution Board or the committee constituted for the purpose.
The over-all responsibility for the enforcement of the provisions of these rules in metropolitan cities have been given to the Secretary-incharge of the Department of Urban Development of the State/Union Territory. Further, the District Magistrate/Deputy Commissioner of the concerned district shall have the overall responsibility for the enforcement of these rules within their area of jurisdiction. (Rule 5)
A careful reading of the Rules shows that burning of waste is not allowed.
Sadly, the Rules allow incineration (but not open burning), including pelletisation of waste (that too for use as a fuel) subject to it meeting Dioxins standards mentioned in the guidelines of hazardous waste incinerators although to my knowledge there is no functional Dioxins testing laboratory in India. One does not know how those standards were arrived at or whether or not there is indeed a safe level of Dioxins exposure.
Under the present circumstances, it would be better to take the route of using IPC and CrPC because it was aptly used by Justice Iyer for an immediate remedy.
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