IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
I.A. NO. 62 OF 2012
I.A NO. 61 OF 2012
WRIT PETITION (CIVIL) NO. 657 OF 1995
IN THE MATTER OF
Research Foundation for Science,Technology
And Natural Research Policy …Petitioner
UOI & Ors …Respondents
AND IN THE MATTER OF:
New Delhi …Applicant in
(I.A No. 62 of 2012)
AND IN THE MATTER OF:
M/s Best Oasis Ltd. …Applicant in
(I.A. No.61 of 2012)
Reply and Submissions on Shipbreaking
THE CHIEF JUSTICE OF INDIA AND
HIS COMPANION JUSTICES OF THE SUPREME
COURT OF INDIA
MOST RESPECTFULLY SHEWETH:
1. That the Applicant has filed the above mentioned application (I.A No. 62 of 2012) on 27.04.2012, on which this Hon’ble Court had issued notice on 03.05.2012, wherein this Hon’ble Court directed the UOI and Ministry of Shipping to take instructions and inform this Hon’ble Court “as to the steps being taken to prevent the ship berthing in any of the ports in India, without following the conditions indicated in the Basel Convention.”
2. That the affidavit reiterates and relies upon the statements made in I.A No. 62 of 2012. Though in the order dated 03.05.2012, UOI and Ministry of Shipping were given six weeks time to file their response.
3. That I.A No. 61 is subsequent to the I.A No. 62 (but numbered earlier) in which the ship owner of Exxon Valdez (now named MV Oriental N, IMO No. 8414520) M/s Best Oasis had sought interim directions.
4. That the Applicant is filing this comprehensive response to the stand taken by the MOEF, Central Pollution Control Board(CPCB), Gujarat Maritime Board (GMB), Gujarat Pollution Control Board (GPCB), Ministry of Shipping and M/s Best Oasis Ltd.
5. That it is not only a question of ex US Ship Exxon Valdez (now named MV Oriental N) but issue of Ship Breaking activity in India. The Applicant is therefore, giving the following details so that the entire issue can be appreciated by this Hon’ble Court.
6. Stand of CPCB, GMB and MoEF
The stand which was taken by different authorities before this Hon’ble Court which culminated in order dated 14.10.2003 (reported in RFSTE vs UOI (2005) 10 SCC 510 at pg 536) was as follows:
i. Affidavit of Central Pollution Control Board (CPCB) dated 29.2.2000, filed pursuant to the order dated 10.12.1999 of this Hon’ble Court. In the said affidavit (at p. 1918-1926 of the Record), it was stated vide Para. 3 as follows:
”The International Maritime Organisation should be requested to issue a notification indicating that Ship owner(s) provide a detailed inventory of hazardous substances contained in a ship before being sold/transported to India for ship breaking. This is required to ensure that the ships are properly decontaminated before export to India”.
A true and correct copy of the response dated 29.02.2000 of the CPCB is Annexure – A.
ii. Vide order dated 20th April 2000 this Hon’ble Court referred to the affidavit filed by CPCB, reply filed by the Petitioner and asked the High-Powered Committee (HPC) – Prof MGK Menon Committee to consider the same. The relevant portion of the order reads as follows:
”With regard to ship-breaking at Alang, affidavit of Shri Lalit Kapur on behalf of the CPCB has been filed. In response to that, the petitioner has filed an affidavit on 15th April, 2000 supporting the stand taken by CPCB. The contention is that steps should be taken to ensure that ships which came to India for ship-breaking should be properly decontaminated before they are exported to India. This aspect is being considered by the HPC. As such, the Union of India should forward to the HPC the affidavit of Shri Lalit Kapur as well as the said comments of the petitioner filed by way of an affidavit of Ms. Shalini Bhutani for consideration and report by the HPC. Needful be done by the Union of India within four weeks from today.” (Emphasis supplied)
A true and correct copy of the order dated 20.04.2000 is Annexure - B
iii. The submission of Gujarat Maritime Board (GMB) before the High Powered Committee (Menon Committee) was that the hazardous / toxic waste contained in the structure of empty ship should be removed by the exporting Countries as such wastes are banned under the Basel Convention. GMB categorically stated that a ship should be allowed to sail only when they are made completely hazardous/toxic free from every corner of the structure of the ship before being auctioned. The stand taken by GMB reads as follows:
“Now as far as hazardous/toxic wastes contained in the structure of empty ships are concerned, the same should be removed by the exporting countries as such wastes are banned under Basel Convention...Here, India is a non-member of OECD therefore it must be clarified here that it is the duty of OECD countries that they should allow to sail only those ships to the non-OECD countries for recycling, which are made completely hazardous/toxic contained, free from every corner/structure of the ship before being auctioned.”
A true and correct copy of the response of GMB before the HPC is Annexure – C.
iv. In the report of the High Powered Committee (Prof. MGK Menon Committee), the issue of ship-breaking was dealt with in volume 1 of the Report, from pgs. 74-87 and 172-173. In the report, several recommendations were given, namely, that full information on the type and quantity of hazardous wastes and radioactive materials must be provided before any ship is allowed to be broken; that the workers handling hazardous material must be fully protected and that both their work and health be monitored; that ships destined for ship breaking on India’s coasts ought to be decontaminated as far as possible. Relevant extracts from the HPC report are Annexure – D.
v. The Report of the HPC was considered by this Hon’ble Court in its order dated 14.10.2003 reported in RFSTE Vs. Union of India in 2005 (10) SCC 510 at page 536. All the directions given therein are important. However, the following directions in paras 1, 2 and 16 are quoted below as they clearly point out the need of prior decontamination. These paragraphs are quoted below for ready reference:
We accept the following recommendations of HPC:
(1) Before a ship arrives at port, it should have proper consent from the authority concerned or the State Maritime Board, stating that it does not contain any Hazardous Waste or Radio Active Substances. AERB should be consulted in the matter in appropriate cases.
(2) The ship should be properly de-contaminated by the ship owner before breaking. This should be ensured by SPCBs.
(16) At the international level, India should participate in international meetings on ship-breaking at the level of the International Maritime Organisation and the Basel Convention’s Technical Working Group with a clear mandate for the decontamination of ships of their hazardous substances such as asbestos, waste oil, gas and PCBs, prior to export to India for breaking. Participation should include from Central and State level.”
vi. The MoEF in its affidavit dated 10.2.2006, which was filed in relation to ‘Le Clemenceau’, the end-of-life French air craft carrier, had stated that:
“I submit that India has consistently taken a stand that ships prior to dismantling should be de-contaminated to the extent possible. In the case of Le Clemenceau, the Government of France has, as per documents submitted, taken steps to de-contaminate the ship of Asbestos containing material to the extent possible without endangering ability of the ship to float.”
A true and correct copy of the affidavit of MoEF dated 10.02.2006 is Annexure – E.
7. That from the pleadings and stand taken by the different authorities before this Hon’ble Court as well as from the order dated 14.10.2003, it clearly comes out that Basel Convention should be followed and the prior decontamination and prior informed consent procedure should be ensured.
8. That with regard to the issue of ship-breaking, further directions were given by this Hon’ble Court vide Order dated 6th September, 2007 reported in 2007 (8) SCC 583. This Hon’ble Court has also given detailed directions while dealing with the dismantling of the end-of-life ship – “Blue Lady” (ex SS France, SS Norway). In the order dated 06.09.2007, this Hon’ble Court had added some more directions while reiterating the directions given in the order dated 14.10.2003, therefore, the order of 2007 has to be read in light of order of 2003. However, Para 8 of the said order dated 06.09.2007 needed clarification in the light of comprehensive directions contained in the order dated 14.10.2003 regarding prior decontamination and in view of Basel Convention and other related International Conventions. This Hon'ble Court had issued directions on 6-09-2007, to various stakeholders to undertake safe and environmentally sound ship breaking in India. With this, directions were also made to the Government of India to formulate a comprehensive Code. The directions have not been complied with even after 5 years.
9. That this Hon’ble Court in the judgment dated 06.07.2012 has considered the issue of ship breaking and has observed as follows:
“…The question of ship breaking and distribution of hazardous wastes are being considered separately in the contempt proceedings, in these proceedings we expect and reiterate that the directions contained in the BASEL Convention have to be strictly followed by all the concerned players, before a vessel is allowed to enter Indian territorial waters and beach at any of the beaching facilities in any part of the Indian coast-line. In case of breach of the conditions, the authorities shall impose the penalties contemplated under the municipal laws of India.”
Para 8 of the judgment reads:
“This Court observed that the ship breaking operations could not be allowed to continue, without strictly adhering to all precautionary principles, CPCB guidelines and upon taking the requisite safeguards, which have been dealt with extensively in the report of the High Powered Committee, which also included the working conditions of the workmen.”
10. Therefore, according to the judgment dated 06.07.2012, Basel Convention is required to be followed.
11. International Conventions
That the status of Trans Boundary movement of hazardous waste in different International Conventions, is as follows:
i. The Basel Convention is related to the control of Trans-boundary movements of hazardous waste and their disposal. Article 1, Article 2, paragraph 1 and 4 and Annex IV, paragraph B of the said Convention are relevant. Ships destined for ship-breaking operations are within the definition of "wastes" as defined by the Basel Convention. The Convention defines "wastes" as: "substances or objects which are disposed of or are intended to be disposed of or are required to be disposed of by the provisions of national law" (Article 2, paragraph 1.). The term "disposal" is further defined to mean "any operation specified in Annex IV to this Convention" (Article 2, paragraph 4). Annex IV includes final disposal operations and operations which lead to recovery, recycling, reclamation, direct re-use or alternative uses. Under Annex IV, paragraph B., ships destined for ship-breaking will, in fact, fall within the entry: "R4 Recycling/reclamation of metals and metal compounds".
Ships destined for ship-breaking operations are "hazardous wastes" under the Convention. Article 1 of the Convention determines the scope of the Convention and defines "hazardous wastes". The definition of "hazardous wastes" includes, inter alia, "wastes that belong to any category contained in Annex I, unless they do not possess any of the characteristics contained in Annex III". Ships destined for ship-breaking typically contain, inter alia, the following Annex I hazardous substances to an extent that they do constitute hazardous wastes:
-Y9 Waste oils/water, hydrocarbons/water mixtures, emulsions;
-Y10 Waste substances and articles containing or contaminated with polychlorinated biphenyls(PCBs) and/or polychlorinated terphenyls (PCTs) and/or polybrominated biphenyls (PBBs);
-and a host of Y19 to Y45 constituents such as Y23 Zinc compounds, Y26 Cadmium; cadmium compounds, Y31 Lead; lead compounds, Y36 Asbestos (dust and fibers).The Parties to the Basel Convention further supplemented Annex I and III by elaborating specific wastes as hazardous wastes and including such wastes in Annex VIII. Annex VIII contains many entries of specific wastes which are contained in ships destined for ship-breaking.
Article 1, paragraph 4 states: "Wastes which derive from the normal operation of a ship, the discharge of which is covered by another international instrument, are excluded from the scope of this Convention." This provision does not apply to ships destined for shipbreaking. It is to exclude operational discharges, e.g., ballast water releases, oil losses during voyage, etc. because such operational discharges from ships in operation are covered by MARPOL Convention.
ii. The ship-breaking operations in non-OECD countries like India do not constitute environmentally sound management as required by the Convention. Ships destined for ship-breaking contain significant quantities of asbestos, 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 the existing ship-breaking yards.
iii. In addition, Article 4, paragraph 3 requires the Parties to "consider that illegal traffic in hazardous wastes or other wastes is criminal."Article 4, paragraph 4 requires that "Each Party shall take appropriate legal, administrative and other measures to implement and enforce the provisions of this Convention, including measures to prevent and punish conduct in contravention of the Convention."Therefore, each Party has a legal obligation to prohibit such ship exports and must do so with respect to all persons ("any natural or legal person" - Article 2, paragraph 14) subject to its jurisdiction, e.g., exporters, importers, brokers, owners, those persons in possession and/or control of the ship, captains, etc.
iv. In order to export a ship for ship-breaking, there is a legal requirement to decontaminate it such that it no longer contains Basel Convention hazardous substances prior to export.
v. Among other things, what is emphasized in the Convention is prior informed consent and the disposal of waste in an environmentally sound manner. India has signed and ratified the said convention, in the order dated 14.10.2003- (2005)10 SCC 510 it has been observed that the Basel Convention is a part of Article 21 of the Constitution. Relevant provisions of BASEL Convention are Annexure - F .
vi. Basel Technical Guidelines under the Basel Convention on Ship dismantling read as follows:
“Transboundary movements of hazardous wastes or other wastes can take place only upon prior written notification by the state of export to the competent authorities of the states of import and transit.” [Page 22]
vii. The Guidelines refer to the High Powered Committee on Management of Hazardous Waste (HPC) constituted by this Hon’ble Court. At page 36, the Guidelines read: “The HPC also provides recommendations on certain steps to be taken to ensure that ships coming to India for ship breaking are properly decontaminated prior to arrival at port.”
viii. At page 49-50, the Guidelines specifically points out: Ballast water which is fresh, brackish or marine water that has intentionally been brought on board a ship in order to adjust the ship’s stability and trim characteristics in accordance with various operating conditions “may contain pollutants, such as residual fuel, cargo hold residues, biocides, oil and grease, petroleum hydrocarbons, and metals (e.g. iron, copper, chromium, nickel, and zinc). Ballast water in cargo tanks (oil) is referred to as dirty ballast water. The transport of large volumes of water containing organisms from shallow, coastal waters across natural oceanic barriers can cause massive invasions of neritic marine organisms. Because ballast water is usually taken from bays and estuaries with water rich in animal and plant life, most ships carry a diverse assemblage of aquatic organisms. Aggregate sediments typically found in ballast tanks will contain living species which reflect the trade history of the vessel.”
It further adds: ‘The arrival condition of the dismantling candidate is most likely that of “in ballast”. The discharge of ballast water/ sediment species into the coastal sea-area may be a potential source for introducing unwanted organisms which threaten the ecological balance in the surrounding seas and thereby represent a direct threat to biodiversity. Ballast water can be the carrier of viruses and bacteria transferred to humans causing epidemics. In order to limit the biological threat represented by the introduction of invasive species via ballast water, the vessel should undergo recommended de-ballasting in accordance with IMO Assembly Resolution A.868(20): “Guidelines for the control and management of ships ballast water to minimise the transfer of harmful aquatic organisms and pathogens”, unless other regulations apply.’ Relevant excerpts from the Basel Technical Guidelines are Annexure-G.
ix) In Rio Declaration 1992, Principle 14 and 19 talks about discouraging/preventing relocation and transfer of such substances which cause serious environment degradation and which are harmful to the human health. It also provides timely notification and information to a concerned State regarding Trans- boundary environmental effect. At the 1992 Rio Summit Chapter 19 of Agenda 21 on “Environmentally sound management of toxic chemicals, including prevention of illegal international traffic in toxic and dangerous products” was adopted. This led to the adoption of a legally binding instrument on the Prior Informed Consent (PIC). Relevant provisions of the Rio Declaration 1992 are Annexure-H.
x) India is a party to UN’s Rotterdam Convention on the Prior Informed Consent (PIC) Procedure for certain hazardous Chemicals and Pesticides in international trade which entered into force on 24 February 2004. In response to the concerns of countries lacking adequate infrastructure to monitor the import and use of hazardous chemicals, the United Nations Environment Programme (UNEP) and the Food and Agriculture Organization of the United Nations (FAO) had jointly introduced the Prior Informed Consent (PIC) procedure. The Convention helps ensure that governments have the information they need about hazardous chemicals for assessing risks and taking informed decisions on chemical imports. In international law, PIC is an established legal safeguard against hazardous substances.
xi) In Rio de Janeiro, Brazil after deliberations during 20-22 June 2012 at the UN Conference on Sustainable Development, the Outcome Document, The future we want at para 89 reads: “We acknowledge the work already undertaken to enhance synergies among the three conventions in the chemicals and waste cluster (the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal, the Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade and the Stockholm Convention on Persistent Organic Pollutants). At 213 of the reads: “We reaffirm our aim to achieve, by 2020, the sound management of chemicals throughout their life cycle and of hazardous waste in ways that lead to minimization of significant adverse effects on human health and the environment, as set out in the Johannesburg Plan of Implementation.”
EU WASTE SHIPMENT REGULATION
xii) Under the European Union (EU) waste shipment regulation 259/93, implementing the Basel Convention, ships are mentioned and removal of dangerous substances is required. Annex II of the EU waste shipment regulation 259/93, with respect to ships states: "Vessels and other floating structures for breaking up, properly emptied of any cargo and other materials arising from the operation of the vessel which may have been classified as a dangerous substance or waste."
xiii) A letter of Shri Rajgopal Sharma, Advisor, Indian Embassy, Brussels dated December 20, 2011 has revealed that most of the dead and hazardous ships that are currently at Alang beach are in illegal traffic. The letter was based on Shri Sharma’s conversation with Shri Julio Garcia Burgues, Head of the Waste Management Unit, European Commission – DG Environment. This letter has been brought to the notice of the Parliamentary Standing Committee on Transport, Tourism & Culture.
12. POSITION UNDER THE ENVIRONMENT (PROTECTION) ACT, 1986:
The said Act defines under Section 2(e) ‘hazardous substance’. Under the said Act, Rules have been framed, namely, Hazardous Wastes (Management, Handling and Transboundary movement) Rules, 2008. Chapter VI of the said Rules of 2008 deal with import and export of hazardous waste. The Rule 12 says that MoEF shall be the nodal ministry to deal with Transboundary movement of hazardous waste. Rule 16 provides procedure for import of hazardous waste for the purpose of recycling of those wastes which are not banned under the Rules. The said Rule incorporates the principle of prior informed consent.
13. SITUATION AT ALANG BEACH
i) That that as many as 5924 ships have been dismantled from 1982 onwards. From 1998 up to August, 2010, 194 deaths have occurred and 348 persons have been injured. More than 415 dead ships have beached / broken in the year 2011-2012 alone. The ship in question is an oil tanker having capacity of 3000 tons which had caused environment havoc in Alaskan waters. Currently, there are some 160 dead ships standing at Alang Beach Bhavnagar, Gujarat with impunity and in violation of Court’s order, UN’s Basel Convention on Transboundary Movement of Hazardous Wastes and Their Disposal and Hazardous Waste Management Rules.
ii) That TSDF facility was constructed when the absence of it at Alang (Gujarat) was pointed out by the Petitioner. However, the said facility is full and therefore, the Standing Monitoring Committee of the MoEF in its report dated 24.1.2011 had taken a decision that “It was also informed to the stake holders that without the TSDF facility, the ship breaking activities should not be allowed by the GPCB as per the Supreme Court directions.” The report of the Standing Committee as well as Ministerial Committee show total non-compliance of the directions of this Hon’ble court
iii) That Alang beach, Bhavnagar, Gujarat remains a grave threat to environmental and occupational health due to dead ships being dumped by developed countries like US, Europe, Japan and others in a routine manner.
iv) The workers in ship breaking are exposed to asbestos dust, heavy metals like lead. Almost one in six ship workers at Alang suffers from asbestos poisoning that could lead to lung cancer. And at 2 per 1,000, the fatal accident rate among Alang's ship workers is several times higher than the 0.34 per 1,000 in the mining industry, which is deemed considered most unsafe. This was revealed in the report by Hon’ble Court-appointed Technical Experts Committee (TEC) on Hazardous Wastes related to Ship breaking headed by the secretary of the Ministry of Environment and Forests. The TEC had commissioned the Gujarat-based National Institute of Occupational Health (NIOH) to carry out the occupational health study on Alang workers. "In ships brought for breaking, free asbestos is usually present as thermal insulation in boilers and floor tiles. When this asbestos is removed, its particles become airborne and attack the lungs," says the report. Their report showed that 15 of the 94 workers tested showed early signs of asbestos exposure. A report from the Gujarat Maritime Board (GMB) that supervises the industrial operations at Alang beach can reveal the status of workers vis-à-vis number of death, disease and injury.
v) In an Office Memorandum No.29-3/2009-HSMD, Government of India, Ministry of Environment & Forests, (HSM Division) dated 9th May, 2011 relating to implementation of Supreme Court directions in respect of ship breaking activities, it has come to light from the Office Memorandum dated May 2011 that Ministry of Environment & Forests (MoEF)’s Standing Monitoring Committee (SMC) on Shipbreaking has suggested that since Gujarat Maritime Board (GMB) and Customs were not able to verify the authenticity/genuineness of ship’s registry/flag in the fast in respect of some ships referred to them, this task in respect of each ship may be referred to the Directorate General Shipping, Ministry of Shipping ought to undertake such verification henceforth. The GMB officials informed MoEF that “the suggestion of the committee is acceptable to them subject to such verification by DG Shipping is done within a period of 2 working days. If no information is received from the DG Shipping within 2 working days, it will be presumed that the certificate submitted is authentic and genuine.” But such presumption cannot be accepted as it will amount to acceptance of a fake document.
vi) The SMC observed that “at present there is no single point access to the yards and therefore, hazardous waste is being illegally dumped at various places. It was suggested to have a single point access to the yards in order stop such illegal dumping activity.” It has come to light from the report of the site visit of the SMC that they visited the existing Hazardous Waste Treatment, Storage & Disposal Facility (TSDF) site and it was observed that the existing landfill is filled up.
vii) That the SMC informed to the stakeholders that without the TSDF facility the shipbreaking activities should not be allowed by the GPCB as per the Supreme Court directions. It is evident that the shipbreaking activity that is currently in operation is happening in the absence of TSDF. This is in clear violation of the Court’s directions.
viii) That continued creation of landfill facilities for hazardous wastes that originated in developed countries, will turn ecosystem of Bhavnagar into a toxic hotspot. Even if a new land fill is created, what happens after one year and the year thereafter, these landfills will also get filled up. It appears that Bhavnagar will become a Hazardous Waste TSDF capital for the ship owning companies and countries in order to appear vibrant to the developed world.
ix) There is a need for Gujarat Pollution Board (GPCB) to make its study for sea water and sediment analysis that has been undertaken public so that the extent of pollution at Alang beach can be comprehended. The funds collected by GMB and Steel Ministry’s Ferrous Scrap Committee (FSC) from workers and ship breakers has not been used for remediation and decontamination of Alang beach and for workers and villagers’ environmental and occupational health rights. The Minutes of the Hon’ble Court’s Inter Ministerial Committee on Shipbreaking, under Union Steel Ministry also reveal the current status of the activities at Alang beach. A true and correct copy of the minutes of IMC and SMC’s later site visit report is Annexure – I (Colly).
14. BACKGROUND OF EXXON VALDEZ
i) This end-of-life vessel has been purchased by Best Oasis Company, (a subsidiary of Priya Blue Industries Pvt Ltd) based in Bhavnagar, Gujarat. a ship for dumping it in the Indian waters in the name of dismantling and recycling.
ii) That in the year 2000-2001, the owner of Priya Blue Industries Pvt Ltd, Shri Sanjay P Mehta has been in the ship recycling business as he was engaged with “MARUTI METALS, LLC” in the US as a advisor at the recycling Site at Brownsville, Texas. It was involved in the dismantling of United States Adventure, a US Navy vessel as per the requirements of US Maritime Administration [MARAD] an agency within the US Department of Transportation. After the entrepreneurs of the "MARUTI METALS LLC" decided to close their business in US, Shri Mehta moved to India to further continue his recycling business in Alang-Sosiya, Gujarat India. Its 100% subsidiary, Best Oasis Limited, a newly formed company and a part of "Priya Blue Group" which is a "CASH BUYER" that purchases vessels on "As is Where is basis" to deliver the same for ship dismantling at Alang beach at the convenience of ship owners from developed countries. Best Oasis Limited is a purchaser, seller and financer of end-of-life ships.
iii) The end-of-life ship was purchased in March 2012 by a US based company Global Marketing Systems (GMS), which is one of the biggest, cash buyers for dead ships. It was sold to Best Oasis Company for about $16 million. The Bill of Sale of the ship alone can reveal its true or latent value.
iv) This 301 meters long tanker is 50 meters wide, 26 meters depth, weighing 30,000 tons empty and powered by a 23.60 MW diesel engine. US based National Steel and Shipbuilding Company built this tanker for Exxon Mobil Corporation, a US multinational oil and gas corporation and a direct descendant of John D. Rockefeller's Standard Oil Company. It was built in San Diego, California in 1986.
v) That according to IMO, “In March 1989, the Exxon Valdez, loaded with 1,264,155 barrels of crude oil, ran aground in the northeastern portion of Prince William Sound, spilling about one-fifth of its cargo. It was the largest crude spill, to date, in US waters and - probably the one which gained the biggest media coverage to date. The U.S. public demanded action - and duly got it. The United States introduced its Oil Pollution Act of 1990 (OPA 90), making it mandatory for all tankers calling at U.S. ports to have double hulls.” From 1986 to 1990 it was owned by Exxon Shipping Company, a division of Exxon Corporation. In early 1993, it was transferred to another subsidiary company, Sear River Maritime Inc. Till 2005 it was under US flag. From 2005 it was under the flag of Marshall Islands. It was owned by Hong Kong Bloom Shipping Ltd, a unit of China Ocean Shipping Company (COSCO), owner of the second largest shipping fleet in the world from August 2008 to 2011. This company renamed it as Oriental Nicety in 2011.
vi) That in March 2012, this US Vessel was purchased by a US based company Global Marketing Systems (GMS) , one of the leading buyers of dead ships with offices in Shanghai and UAE. This company was indicted by the USEPA in the Platinum II case. The vessel was sold to a ship breaker company in Singapore on March 27, 2012. The name of this ship breaker company has not been disclosed. It is claimed that the ship is now owned by Hongkong based Best Oasis Company, a subsidiary of Priya Blue Company. This company renamed the vessel as MV Oriental N. The veracity of such ownership claims can only be done if the ownership documents are submitted to this Hon’ble Court. The sale of this vessel to Best Oasis was announced by Maryland based GMS.
vii) That after being under the flag of USA and Marshall Islands, it took under Panama flag. As per the last information, this vessel is under Sierra Leone flag. Best Oasis company was set up in Hong Kong in 2010 for the “sole purpose of cash buying of vessels for recycling at Alang, India, Pakistan, Bangladesh and China,” as per company’s website.
viii) That it is noteworthy that in November of 2010 this vessel had collided with the Aali, a Malta-flagged cargo ship, in the South China Sea. This vessel was towed to Longyan Port in the Chinese province of Shandong. Earlier, it was planned that the vessel will be dismantled at Dalian in China. It has come to light that the vessel has illegally moved to Bhavnagar, Gujarat as of July 1, 2012. The last known port of this vessel was Mumbai. This end-of-life vessel of Length x Breadth: 300 m X 50 m has a dead weight of 213855 ton.
15. Violation committed by the Gujarat Maritime Board (GMB), Gujarat Pollution Control Board (GPCB) etc in allowing anchorage of the Ship.
i) That anchorage of the ship is in violation of the order dated May 3, 2012 wherein this Hon’ble Court had asked Union of India, Ministry of Shipping and Ministry of Environment & Forests to inform this Court about the steps being taken to prevent the ship berthing in any of the ports in India, without following the conditions indicated in the Basel Convention.
ii) That the Gujarat Pollution Control Board (GPCB) in a letter addressed to the Port Officer, Gujarat Maritime Board (GMB) has clearly stated that: “in view of the above facts and circumstances this office is not recommending for anchoring permission to the aforesaid vessel till further order is issued by the Hon’ble Supreme Court of India on the Interlocutory Application filed in W.P (C0 657 of 1995.” This letter has been annexed at page no. 17 and 18 of the application of M/s Best Oasis Ltd.
iii) That this letter of GPCB specifically refers to Shreeji Shipping Agency’s letter seeking permission for anchoring (at page 18 of the application). Responding to the same, GPCB had reproduced this Hon’ble Court’s order of May 3, 2012 and denied permission.
iv) That the agency which applied for the anchoring permission is named as SHREEJI SHIPPING AGENCY. It is not revealed as to what is the relationship between this agency and Mumbai based Mr. Oswald Cardozo (who has filed affidavit in support of the application at page 7 and 8) of Hongkong based Best Oasis Company, a subsidiary of Gujarat based Priya Blue Company.
v) That the letter of GPCB dated May 8, 2012 reveals that the Office of the Assistant Commissioner of Customs had also taken cognizance of these violations. It also refers to starred questions raised in Rajya Sabha about the vessel. It is mentioned that ‘This office has also referred the matter to seek legal opinion, accordingly it would not be appropriate to grant any permission to the vessel ‘MV Oriental N’ having one of the old name ‘Exxon Valdez’ till further order is issued by the Hon’ble Supreme Court of India.”
vi) The question is what has changed since May 3, 2012 till date to necessitate GPCB to revisit its denial to grant any permission to the vessel in question. The subsequent orders dated 14.05.2012 and 25.06.2012 passed by the Vacation Bench do not grant any permission to the Ship for anchoring.
vii) However, in the affidavit dated 03.06.2012 GMB has stated in Para 6 that “ subsequently, the Answering Respondent instructed the Applicant to bring the vessel for the purpose of inspecting the Ship whether there are any hazardous/ toxic substances on board.
viii) Para 7 of the Affidavit of GMB along with annexures reveals that on 26.06.2012 itself anchoring permission was granted whereas the application by Shreeji Shipping Agency was dated 30.06.2012. On 30.06.2012 Gas free Certificate for Man Entry was given by the Government of India which shows that Ballast was present in tanks. Same day Gas Free Certificate for entry in Dry or wet Dock was given. It is on the same day that Gas Free Certificate for Hot work was granted. The atomic energy regulatory board has found 60 numbers of smooth detectors containing AM 241. The provisional certificate of registry issued by the Republic of Sierra Leone shows that the vessel was granted permission for “one single voyage from Singapore to Bhavnagar, India”. The date of place and issue of the said certificate is at Cochin, India dated 04.04.2012 which is valid until 03.07.2012.
ix) The above affidavit shows that on 26.06.2012 itself the ship was granted anchorage permission, the day when IA by M/s Best Oasis Ltd was listed for hearing.
x) That the affidavit filed by the GMB does not show that the concerned agencies namely Gujarat Maritime Board in consultation with CPCB and Customs Deptt had looked into all the documents carefully and assessed the hazardous substances/ wastes in the structure of the Ship and on board and thereafter had taken a decision.
xi) The order/permission for anchorage does not show that ‘prior inform consent’ procedure as provided in the Basel Convention was followed and that the Ship was decontaminated by the Country of export.
xii) The violation of order dated 03.05.2012 regarding observation of Basel Convention, which is subsequently confirmed by the judgment dated 06.07.2012 has been duly established.
16. POSITION IN BANGLADESH
That following Hon’ble Court’s judgment of October 14, 2003, the Supreme Court of Bangladesh on 22.08.2010 directed Bangladesh Ship Breakers Association to execute the High Court order to get all end of life ships decontaminated at source and outside Bangladesh territory. The High Court on 11.05.2010 had directed the Association to have pre cleaning certificate of decontamination before importing vessels into Bangladesh for breaking. The newspaper report informing the judgment of Hon’ble Supreme Court of Bangladesh dated 22.08.2010 is Annexure - J
It is noteworthy that 22 % of the vessels are insulated vessels (asbestos and glass wool). Bangladesh has banned insulated vessels. Even ship breaking industry in India is not in favour of allowing such vessels. In the refrigeration vessels (for perishable cargo), the entire vessel is insulated whereas in other vessels insulation is only in the engine. The Mumbai port has issued a circular refusing entry of insulated vessels but Gujarat Maritime Board continues to allow it at Alang beach.
17. SUBMISSIONS OF THE APPLICANT
A. As per the order dated 03.05.2012 and the judgment dated 06.07.2012 Basel Convention applies. In the first order dated 14.01.2003, which was coated with approval and the subsequent order dated 06.09.2007, prior decontamination by the Country of export is required before Ship can be allowed entry in the territorial waters. The prior inform consent procedure is required to be followed. Trans-boundary movement of any hazardous waste from developed country to developing country must be with all transparency and previous consent.
B. Non-compliance with the recommendations of the Hon'ble Court constituted Inter-ministerial committee (IMC) on ship-breaking under Union Steel Ministry constitutes violation of Court’s order by concerned agencies.
C. The exporting country must send the documents to the country of import for examination and verification of the inventory. The procedure which is followed today is that the Ship Owner produces the inventory after arrival in the territorial waters. It has become virtually a trade in dumping without any reciprocal obligation of the country involved in such trans- boundary movement. This is against all environmental law and principles.
D. That it is noteworthy that the end-of life vessel is a hazardous waste. The end-of-life ships are laden with asbestos, PCBs and heavy metals. These ‘floating wastes’ are being dumped in India.
E. It is for US Maritime Administration (US MARAD), US Environmental Protection Agency (USEPA) and the ship owner in question to disclose the original inventory of hazardous and radioactive materials on board the vessel, ex Exxon Valdez. The MoEF is the nodal Ministry to verify this inventory in advance and grant prior inform consent. The said inventory has to be rechecked by the Central Pollution Control Board, GPCB, Customs and Gujarat Maritime Board. In the absence of required laboratory facility how can visual inspection alone verify presence or absence of PCBs and other hazardous substances.
F. That the entry permission, anchoring permission and inspection has been granted in violation of Supreme Court order of May 3, 2012, which stands confirmed in the final order dated July 6, 2012.
G. That permission for anchoring has been granted even without looking at inventory submitted by the Ship for the purpose of verification. The documents show the casual manner in which every ship is allowed to enter territorial waters and beached and that none of the Authorities are concerned about the environment and human health.
H. That there is a need to pierce the corporate veil by examining the current and past ownership documents of this end-of-life vessel to ascertain its past and future liabilities. Industrialized countries like USA should not be allowed to dump their junk into the developing countries like India on the account of easy availability of vulnerable and disposable workforce and alien coastal ecosystem. The eagerness to profit from one of the world's dirtiest industries, the dismantling of toxic ships by migrant and casual workers from Uttar Pradesh, Jharkhand, Bihar and Odisha at Alang beach is fraught with disastrous environmental and occupational health consequences.
I. That in such a situation, there is a compelling reason for this ex- US ship to be sent away from the Indian waters. It is trying to repeat the story of another dubious dead US ship Platinum II (ex SS Independence, MV Oceanic) to set a bad a precedent to ensure that it paves the way for hundreds of dead toxic US ships waiting to be dumped in Indian waters.
Drafted & Settled by: Filed by:
SANJAY PARIKH ANITHA SHENOY
(Advocate for the Applicant)