Government Rules Allow Hazardous Wastes Import
Commerce & Environment Ministry Must Ban Hazardous Waste Trade
Ratify UN’s Ban Amendment to Prohibit Toxic Wastes in the name of recycling & recovery
New Delhi, 23/4/2010: Proposed free trade agreements between Japan, EU and others besides the recent amendments to existing Hazardous Waste Rules promote trade in hazardous waste unmindful of the National Environment Policy that acknowledges how "Environmental factors are estimated as being responsible in some cases for nearly 20 percent of the burden of disease in India".
ToxicsWatch Alliance and other environmental groups have expressed deep concern about the global toxics and health crisis and have urged the government to make every effort to ratify the Basel Ban Amendment (1995) to effectively banning hazardous waste exports from OECD and Liechtenstein to all other countries.
It is alarming to note that hazardous wastes continue to be transferred to India and it is getting harder to control their movements. There is, therefore, a need to implement the letter and spirit of the UN’s hazardous wastes treaty, the Basel Convention was adopted in 1989 and entered into force in 1992. It was created in response to the outrage of developing countries over dumping of toxic waste and hazardous wastes into their countries under the guise of trade and sometimes materials for recycling. The US has not ratified it. It addresses management, disposal and transboundary movement of hazardous waste. Its guiding principles are: waste should be reduced to a minimum; managed in an environmentally sound manner; be treated and disposed of as close as possible to their source of generation; and be minimised at the source. When the original Basel Convention was adopted in 1989, it was primarily an instrument to monitor the transboundary movement of hazardous waste rather than to prevent and reduce them.
Worldwide concern about the transboundary movement and disposal of hazardous wastes was heightened in the late 1970s and early 1980s. The major concern was wastes being exported from industrialized nations for cheap disposal in inadequately prepared sites in developing countries.
This concern led to a new urgency in developing and implementing international controls. It culminated in the landmark global convention under the United Nations to control the transboundary movement of hazardous wastes and their disposal, commonly called the Basel Convention. As of March 2009, 173 Parties including India have ratified the Basel Convention.
At the second Conference of the Parties to the Basel Convention (COP-2), Parties agreed on an immediate ban on the export of hazardous wastes intended from final disposal from OECD to non-OECD countries. The BAN was adopted as an amendment to the Convention (Decision III/1). The parties agreed to ban, by 31 December 1997, the export of wastes intended for recovery and recycling (Decision II/12). However, because Decision II/12 was not incorporated in the text of the Convention itself, the question as to whether it was legally binding or not arose. Therefore, at COP-3 in 1995, it was proposed that the Ban be formally incorporated in the Basel Convention as an amendment (Decision III/1). Decision III/1 does not use the distinction OECD/non-OECD countries. Rather, it bans hazardous wastes exports for final disposal and recycling from what are known as Annex VII countries (Basel Convention Parties that are members of the EU, OECD, Liechtenstein) to non-Annex VII countries (all other Parties to the Convention).
So far 68 countries have ratified it but India is yet to ratify it due to the influence of hazardous waste traders. This leaves the door open for hazardous waste trade. But some 88 countries banned the import of hazardous waste through national laws or regional agreements. One had heard of illegal global trade of hazardous waste, particularly in areas of armed conflict but the same is happening in India even in peace time.
Under the Environment Protection Act, 1986, there is a rule that deals with hazardous wastes to draws explicitly from Basel Convention. This Rule was originally called Hazardous Wastes (Management and Handling) Rules, 1989. The Environment Ministry proposed to amend it to make it "Hazardous Materials (Management, Handling and Transboundary Movement) Rules” but due to massive protest from environmental and industry associations, it was notified as Hazardous Waste (Management, Handling and Transboundary Movement) Rules, 2008.
The insertion of the word transboundary movement is a euphemism for hazardous waste trade by terming it as recyclable metal scrap trade or commerce in end- of-life products. Part B of the Rules provides elaborate “List of hazardous wastes applicable for import and export not requiring prior informed consent”. The list includes metal and metal bearing wastes under which iron and steel scrap, Thorium scrap, chromium scrap, rare earth scrap, Zinc scrap; scrap assemblies from electric power generation and several others.
The proposed Free Trade Agreements between Japan, EU and other countries are fraught with the possibility of promoting such trade in hazardous wastes. This has been done in Philippines and other developing countries in pursuance of the principle of transferring harm to less polluted countries enunciated by US government’s chief economist, Lawrence Summers. The drafts of the agreements remain classified. And once the agreement gets signed, it becomes a fait accompli with no role for parliament and the civil society in it at any stage.
Now the Rules have again been amended and renamed as Hazardous Wastes (Management, Handling and Transboundary Movement) Third Amendment Rules, 2010 after it was notified on 30 March, 2010.
Under Rule 23 of it refers to the “Responsibilities of Authorities” which is specified in its Schedule VII that provides the List of Authorities and Corresponding Duties” wherein it is mentioned that Directorate-General of Foreign Trade constituted under the Foreign Trade (Development and Regulation) Act, 1992 has a duty to “Grant License for import of hazardous wastes”.
The Hazardous Wastes (Management, Handling and Transboundary Movement) Third Amendment Rules, 2010, notified on March 30, 2010 is contrary to the orders issued by the Supreme Court. The order dated 14th October, 2003 endorsed Basel Convention as well. The now notification is in contempt of the Court and violates the spirit of the Basel treaty by allowing traders to deal with hazardous wastes who are endangering public and ecological health.
Environment ministry feigns ignorance about the India’s original position when it says, "Basel Convention does not ban any imports. It prescribes a Prior Informed consent mechanism for import and export of Hazardous wastes so that the transboundary movement is regulated." Its original position was visible at the First Conference of Parties to the Basel Convention in Uruguay in November 1992, A. Bhattacharja, head of the Indian delegation, 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."
At the Second Basel Convention Conference of Parties, in March 1994, with India still holding firm, the countries advocating a waste trade ban successfully convinced all parties to the Convention to agree to a ban on all hazardous waste exports from the world's most industrialized countries (members of the Organization of Economic Cooperation and Development) to non-industrialized countries. That ban was scheduled to begin immediately for disposal and on January 1, 1998 for wastes destined for recycling facilities overseas.
In 1995, representatives of both the United States and Australia urged them in personal meetings to drop their support for the ban. Prior to the Third Conference of Parties, the Indian government announced it was reconsidering the Basel Ban and might continue to allow hazardous waste imports for recycling into India. The government asserted India could handle imported hazardous waste, especially metal-containing wastes, safely. Kamal Nath, then India's environment minister, explained, "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 overturned the India’s moral and legal position. Government must now reverse the trend and the ratify Ban Amendment.
Earlier, the onus was on the "the exporting country" to provide the test report of analysis of the hazardous waste consignment from a laboratory accredited by the exporting country as per the Rule 16 with regard to “Procedure for import of Hazardous Waste” in Sub-section-5. Now as per Hazardous Wastes (Management, Handling and Transboundary Movement) Second Amendment Rules, 2009 dated 23rd September, 2009. in rule 16, in sub-rule (5), the burden has been put on Director General of Foreign Trade (GDFT), Commerce Ministry.
The order of the Supreme Court was translated into legislation by the Government of India in the Ministry of Environment and Forests. The Hazardous Wastes (Management and Handling) Amendment Rules were notified in 2003.
But these recent amendment notifications signed by Rajiv Gauba, Joint Secretary, Hazardous Substances Management Division (HSMD), Ministry of Environment and Forests have diluted the apex court’s order. This appears to have endorsement of R H Khwaja, the Additional Secretary who responsible for HSMD. Clearly, both Commerce Ministry are working in tandem with Environment Ministry to ensure that hazardous waste trade gets properly legitimized as recyclable, recoverable and reusable scarp metal trade. Earlier, the Ministry of Commerce had abandoned its decision to have a registration scheme for overseas suppliers of scrap as applicable in China.
As per the EXIM Policy, import of second hand goods is restricted and can be imported only with the permission of the 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.
With the recent amendments from Ministry of Environment, hazardous waste gets classified as recyclable material, and it appears to 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 becomes deemed non-waste. In this way toxic waste reincarnates itself as a reusable or recyclable product.
When the DGFT had proposed its registration scheme covering imports of scrap, the US Institute of Scrap Recycling Industries and the Indian scarp steel industry had objected to it saying, “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 introduced in July 2007, to which all EU member nations need to comply. The new EU rules now require a 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.
The UPA government's own National Environment Policy (NEP) 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 amendments to the hazardous waste rules, all of this has been ignored, and the existing regime has been sought to be dismantled. Oddly enough, the 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 Ministry's own and proposed amendments to the Hazardous Waste Rules must be reviewed and revised.
For Details: Gopal Krishna, ToxicsWatch Alliance, Mb: 9818089660
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