Shri Arun Jaitley,
Union Minister of Finance
Government of India
Smt. Nirmala Sitharaman
Union Commerce and Industry Minister
Government of India
Date: July 2, 2016
Subject- Issues of concern regarding Hazardous and Other Wastes (Management &Transboundary Movement) Rules, 2016
This is to draw your immediate attention towards some gnawing concerns with regard to Hazardous and Other Wastes (Management &Transboundary Movement) Rules, 2016 which was notified in The Gazette of India on 4th April, 2016. An examination of the new Rules released by the Union Minister of Environment, Forest and Climate Change shows that its provisions are contrary to the objectives of 'Swachh Bharat Abhiyan' (Clean India Mission) launched on 2nd October, 2014 by the Prime Minister.
I submit that while the prohibition on import of Waste edible fats and oil of animals, or vegetable origin; Household waste; Critical Care Medical equipment; Tyres for direct re-use purpose; Solid Plastic wastes including Pet bottles; Waste electrical and electronic assemblies scrap and Other chemical wastes especially in solvent form is praiseworthy but the continuance of patronage to international and national hazardous waste traders is contrary to supreme national interest.
I wish to inform you that the new Hazardous rule-2016 which was declared on 4th April, 2016 is not being implemented. Despite the new Rule for solid plastic waste, Customs at Sea port (including Mundra-Gujarat, Nhavasheva-Maharashtra, ICD-TKD - Delhi, Chennai sea port) are permitting the import of Plastics waste from Middle-East, USA and Europe in baled and foam, loose ( Solid Plastics waste in foam of Film, PET Bottle scrap, etc.). In Kanlda SEZ and Falta SEZ and some EOU also have plastics waste processing industries that got license in free trade zone in 1997-1998. Turning free trade zone into SEZ scheme they continue to import with same license. In 2013 September SEZ Board introduced new notification for export 40% for first 2 year (up to Sept-2015) and after that all Industries must export 80% for next 2 year (up to Sept-2018) and than 100% exports in last 5 year out of import plastics waste.
A total of 28 units in Kandla SEZ and Falta SEZ are not exporting out of country. They sell in domestic Indian market after paying Customs Duty and achieving NFEP (net foreign earning as per SEZ Rule). This procedure of maintaining SEZ unit for last 13 year is wrong as they not follow SEZ rule for physical exports out of India.
In the aftermath of new Hazardous Waste Management Rule, 2016 these SEZ units are importing waste/scrap. It implies that they continue to import, process and sell in India using the loophole in SEZ rule. The websites like www.zauba.com and other related sites indicate that PET Bottle Scrap and other waste is still being cleared from Mundra and Other sea ports after 4th April, 2016.
I submit that Ministries of Finance and Commerce appear to be in dark about the new Hazardous Waste Management Rule, 2016 as a consequence of which Customs and other related agencies are not stopping illegal traffic of plastic waste which is prohibited for import.
According to Supreme Court of India, “Hazardous Wastes are highly toxic in nature. The industrialization has had the effect of generation of huge quantities of hazardous wastes. These and other side effects of development gave birth to principles of sustainable development so as to sustain industrial growth. The hazardous waste required adequate and proper control and handling. Efforts are required to be made to minimise it. In developing nations, there are additional problems including that of dumping of hazardous waste on their lands by some of the nations where cost of destruction of such waste is felt very heavy. These and other allied problems gave birth to Basel Convention.”
The new rules titled "Hazardous and Other Wastes (Management &Transboundary Movement) Rules, 2016". It is noteworthy that the final text of Rules which has been announced through PIB has neither been put in public domain nor has it been uploaded on the website of the Ministry.
In order to comprehend issues at stake it is important to peruse the new Rules defines “import”, which means "bringing into India from a place outside India" and “importer” which means "an occupier or any person who imports hazardous and other waste".
As per the new Rules, “transboundary movement” means any movement of hazardous or other wastes form an area under the jurisdiction of one country to or through an area under the jurisdiction of another country or to or through an area not under the jurisdiction of any country, provided that at least two countries are involved in the movement.
It reveals that "transboundary movement" of hazardous has become part of ministry's sound environmental management approach. This term was introduced in 2008 apparently under the influence of hazardous waste traders when the pre-existing Hazardous Waste Rules were amended. This term has been lifted from UN’s Basel Convention on Transboundary Movement of Hazardous Wastes and Their Disposal. The key objectives of the Basel Convention are: “to minimize the generation of hazardous wastes in terms of quantity and hazardousness; to dispose of them as close to the source of generation as possible; to reduce the transboundry movement of hazardous wastes.” It is quite evident that the New Rules are contrary to the objective of the UN Convention to which India is a party. The 2016 Rules encourages disposal of waste farther away from the source of generation. It promotes transboundary movement of hazardous wastes.
The Convention was made part of its order by Supreme Court of India due to alarming situation created by dumping of hazardous waste, its generation and serious and irreversible damage, as a result thereof, to the environment, flora and fauna, health of animals and human beings. The Court took cognizance of violation of Article 14 and 21 of the Constitution of India.
Chapter III of the Rules deals with "import and export of hazardous and other wastes". Clause 11 of the Rules provides that "The Ministry of Environment, Forest and Climate Change shall be the nodal Ministry to deal with the transboundary movement of the hazardous wastes in accordance with the provisions of these rules." Clause 12 (2) reads: "The import of hazardous and other wastes form any country shall be permitted only for the recycling or recovery or reuse."
Such permission for import of hazardous waste for "recycling or recovery or reuse" is an attempt to define waste as non-waste. This is an act designed to re-define end-of-life product as non-waste. It is akin to defining waste as non-new good. It is an exercise in linguistic corruption. This has apparently been done to pander to the interests of international and national hazardous waste traders.
Clause 13 (1) reads: The import and export of the hazardous and other wastes specified in Schedule III, shall be regulated in accordance with the conditions laid down in the said Schedule.
This is an admission that trade in hazardous waste will happen in a business as usual manner.
Clause 13 (2) reads: " Subject to the provisions contained in sub-rule (1),-(i) the import or export of the hazardous wastes specified in Part A of Schedule III shall require Prior Informed Consent of the country form where it is imported or exported to, and shall require the license from the Directorate General of Foreign Trade and the prior written permission of the Central Government. (ii) the import of other wastes specified in Part B of Schedule III shall not require prior written permission of the Central Government and Prior Informed Consent of the country from where it is imported; (iii) the import and export of the hazardous wastes and other wastes not specified in Part A or Part B, respectively of Schedule III but having the hazardous characteristic outlined in Part C of the said Schedule shall require prior written permission of the Central Government before it is imported or exported from India, as the case may be."
It is apparent from above provision that Directorate General of Foreign Trade (DGFT), Ministry of Commerce has made Ministry of Environment, Forest and Climate Change subservient to commercial interest. Thus, it has subordinated the environmental health interest of the country.
Clause 13 (3) reads: "The import of hazardous and other wastes shall be limited to one-third of the total annual processing capacity of the unit, as specified in the authorisation."
This is also an admission of support for import of hazardous and other wastes.
Clause 15 of the Rules deals with Procedure for import of hazardous wastes and other wastes. It reads: "Actual users for recycling or reprocessing may import into the country other wastes listed in Part B of Schedule III (having no asterisk/s ‘*’) if such user is authorised by the State Pollution control Board, has the Directorate General of Foreign Trade license, wherever applicable and the relevant documents have been verified by the Customs authorities:
Provided that the documentation requirement for specific kind of waste shall be specified by the Ministry of Environment, Forest and climate Change from time to time."
I submit that unless all the waste that is generated in the country has been treated and disposed of in an environmentally sound manner how can hazardous waste import be permitted. How can the central government offer its non-existent services and infrastructure to other countries to help them deal with their hazardous waste and other wastes in the absence of required infrastructure like laboratories, treatment facilities and land in the country which can be used for testing samples of imported waste and treatment and landfills? In name of demonstrating “Ease of Doing Business” and Make India India cannot be turned into a land of landfills for foreign hazardous wastes.
Other provisions of Clause 15 of the new Rule make it clear that the government is promoting trade in hazardous waste in a business as usual manner.
The relevant provisions reads: "The Port or Customs authorities shall, in case of import of other wastes as specified in Part B of Schedule III, ensure that shipment is also accompanied by Movement Document in Form 7 and pre shipment inspection certificate issued by the inspection agency certified by the exporting country or the inspection and certification agency approved by the Directorate General of Foreign Trade."
It reads: "The importer of the hazardous waste and other wastes shall maintain records of the hazardous and other waste imported by him in Form 8 and the record so maintained shall be available for inspection."
It also provides "The importer shall also inform the concerned State Pollution Control Board and the Central Pollution Control Board, the date and time of the arrival of the consignment of the hazardous and other waste ten days in advance."
These provisions under Chapter III and the role of Directorate General of Foreign Trade (DGFT), Ministry of Commerce reveals that the Rules continue to promote trade in hazardous wastes. These Rules allow Indian to remain a dumping ground of hazardous wastes.
The Rules stated that it will not be applicable to "wastes arising out of the operation form ships beyond five kilometers of the relevant baseline as covered under the provisions of the Merchant Shipping Act, 1958 (44 of 1958) and the rules made thereunder." The Rules should have dealt with hazardous substances laden end-of-life ships as part of hazardous wastes which is covered under UN’s Basel Convention on Transboundary Movement of Hazardous Wastes and Their Disposal and accepted by Supreme Court of India as part of Right to Life. It is noteworthy that Basel Convention is related to the control of Trans-boundary movements of hazardous waste and their disposal. The ships destined for ship-breaking operations are "hazardous wastes" under the Convention.
I submit that in September 2007, the Ministry of Environment proposed an amendment to the Hazardous Wastes (Management & Handling) Rules; after amendment it would read "Hazardous Materials (Management, Handling and Transboundary Movement) Rules. The proposed rules had the effect of exempting transit countries from obtaining prior informed consent for all shipments of hazardous waste to India. The proposal also stated that as long as a material contains less than 60 per cent contamination by a hazardous constituent, then it is safe for our ecology. Waste asbestos embedded in the structure of the scrap material was not banned.
Such motivated attempt at redefinition attracted widespread criticism from environment, public health groups and even the Confederation of Indian Industry (CII). It was a gross act done at the behest of hazardous waste traders. Two members of Supreme Court's own monitoring committee on hazardous wastes also raised objections. In a study, ASSOCHAM recommended ban on trade in hazardous wastes.
The question which merits consideration in the light of the 2016 Rules is: Are hazardous wastes and hazardous materials and recyclable materials synonymous?
The 2007 draft Rules had redefined "hazardous waste" as "hazardous material". It introduced a completely new system of classifying items, contrary to the definition provided by the Supreme Court and UN's Basel Convention on the Control of Transboundary Movements of Hazardous Waste, to which India is a party. The 2016 Rules follows the flawed path of the draft 2007 Rules.
The Basel Convention gives a very clear and simple definition of waste: wastes are materials which are disposed of, or intended to be disposed of, or required to be disposed of, to the environment”. The Supreme Court order of October 2003 had already observed that although Basel Convention has banned import of 76 items, India had only banned 29 items under the Hazardous Wastes (Management and Handling) Rules, 1989. It had directed the Union of India to incorporate the Basel list in the existing Rules and had actively argued for expanding the list of prohibited items for import.
I submit that instead, the amendment proposed by the Ministry leaves room for import of hazardous waste. If it gets notified in the Gazette of India, it will imply that any hazardous waste can be freely imported if it simply states that it meant for recycling, reuse and recovery.
The new Rules made public for creation 2016 Rules defines “disposal” as “any operation which does not lead to recycling, recovery or reuse and includes physico chemical, biological treatment, incineration and disposal in secured landfill.” It is noteworthy that it will have us believe that “recycling, recovery or reuse” is disposal.
A careful perusal of the Rules shows that the Rules are being under the tremendous influence of Ministry of Commerce. The design of the hazardous waste management rules is part of the process of re-engineering provisions of the Environment Protection Act and Rules therein in keeping with the recommendations made by the Govindarajan Committee on Investment Reforms and are admittedly “in line with this Government’s priority for Ease of Doing Business and Make in India”. In such a scenario, environmental health concerns have taken a back seat.
It must be recalled that the Ministry of Commerce abandoned its decision to have a registration scheme for overseas suppliers of scrap as applicable in China. As per the EXIM Policy 2002-2007, import of second hand goods is restricted and can be imported only with the permission of the Directorate General of Foreign Trade (DGFT). The DGFT had announced a plan in March 2006 to introduce a registration system covering imports of unshredded ferrous and non-ferrous scrap. This was proposed in the wake of explosions and loss of life linked to the presence of munitions in consignments arriving at Indian ports. Further, DGFT had announced a plan similar to that implemented in China which would have required applicants to demonstrate their financial and business standing.
But with the proposed amendment from Ministry of Environment, hazardous waste gets classified as recyclable material, and it would fall in the category of second hand materials. The DGFT will be able to allow even hazardous waste since as per the new notification a waste would be deemed as non-waste. In this way toxic waste will reincarnate itself as a reusable or recyclable or recoverable product.
When the DGFT had proposed its registration scheme covering imports of scrap, the US Institute of Scrap Recycling Industries and the Indian scrap steel industry had objected. They argued that exporters should make sure we don’t repeat the mistakes of the past. We should self-regulate to ensure no explosive materials are shipped.”
The DGFT appears to have caved in to their pressure and instead suggested self-regulation to the industry, according to information received from the Bureau of International Recycling (BIR) meeting in Warsaw, Poland during 22-23 October 2007. BIR is the international trade federation representing the world’s recycling industry, covering in particular ferrous and non-ferrous metals etc.
The position of the Ministry of Commerce (the DGFT) is, in effect, in complete contrast to the revised EU Waste Shipment Regulations, to which all EU member nations need to comply. The new EU rules now require an tracking document to accompany shipments of non-hazardous materials designated as waste, including recyclables. But the scrap industry feels that the complexity of information required by the new EU rules was totally illogical, complaining that it did not offer clear environment benefit.
In effect, the proposed rules are a formal announcement of globalisation of the toxic chemical crisis. Exporters in rich countries have been consistently seeking to export toxic scrap to India and likewise, there has been a similar trend amongst businesses in the India to import such waste.
I submit that self-regulation is no alternative to corporate accountability. The solutions are waste management through clean production and reduction in the use of toxics chemicals through life cycle assessment, precautionary principle, eco-design, extended producers' responsibility and the polluter-pays principle. All of this is sought to be undermined by the proposed rules. This is being done despite the fact that National Environment Policy acknowledges how "Environmental factors are estimated as being responsible in some cases for nearly 20 percent of the burden of disease in India". The New Hazardous Waste Rules does not factor in such concerns.
I submit that National Environment Policy refers to a range of goals that seem well-intended. They include strategies for cleanup of toxic and hazardous waste dump legacies, developing a national inventory of such dumps, an online monitoring system for movement of hazardous wastes and taking legal measures for addressing emergencies arising out of transportation, handling, and disposal of hazardous wastes.
In drafting the 2016 Rules, all of this has been ignored. It is germane to note that NEP mentions, "the Cabinet or a nominated Committee of the Cabinet may be requested to review the implementation of the National Environment Policy". In line with that, the government's new Hazardous Waste Rules should be revisited. Central Government should recollect that being a signatory to Basel Convention which it signed on 15th March, 1990 and ratified on 24th June, 1992, it is under the obligation to act as the letter and spirit of the Convention and the order of the Supreme Court of India. The order was reiterated on 30th July, 2012.
I submit that the Hazardous Waste Rules, 2016 should be revised to reflect Government of India’s intention to ratify the Ban Amendment to Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal. India missed the opportunity of ratifying it before the Twelfth Conference of the Parties held in Geneva during 4-15 May, 2015. The main principles of this UN treaty are: transboundary movements of hazardous wastes should be reduced to a minimum consistent with their environmentally sound management; hazardous wastes should be treated and disposed of as close as possible to their source of generation; and hazardous waste generation should be reduced and minimized at source. Government of India’s current position is contrary to these principles and stands in manifest contrast with its position in 1992.
By decision III/1, of September 22, 1995, at COP-3, the Third meeting of the Conference of the Contracting Parties to the above Convention that took place in Geneva in September 1995, adopted an Amendment to the Convention. This bans the export of hazardous wastes for final disposal and recycling from rich countries to poorer countries. This amendment was to enter into force following ratification by 62 parties as per Article 17 (5) of the Convention.
This Article reads as follows: “Instruments of ratification, approval, formal confirmation or acceptance of amendments shall be deposited with the Depositary. Amendments adopted in accordance with paragraphs 3 or 4 [of article 17 of the Convention] shall enter into force between Parties having accepted them on the ninetieth day after the receipt by the Depositary of their instrument of ratification, approval, formal confirmation or acceptance by at least three-fourths of the Parties who accepted them or by at least two thirds of the Parties to the protocol concerned who accepted them, except as may otherwise be provided in such protocol. The amendments shall enter into force for any other Party on the ninetieth day after that Party deposits its instrument of ratification, approval, formal confirmation or acceptance of the amendments.”
The Ban Amendment has not entered into force despite the fact that 70 parties have ratified it because Basel Convention Secretariat appears to have surrendered under the influence of powerful hazardous waste traders. The parent treaty, the Basel Convention has been ratified by 183 countries. Government should pay heed to the fact that the European Union has implemented the Basel Ban in its Waste Shipment Regulation. It has made it legally binding on all EU member states. Norway and Switzerland too have implemented the Basel Ban in their legislation.
Under the influence of countries like USA, Germany, United Kingdom, Australia, Canada, South Korea and Japan in general and U.S. Chamber of Commerce, the world’s largest business federation representing the interests of more than 3 million businesses, International Chamber of Commerce, US Institute of Scrap Recycling Industries and Bureau of International Recycling (BIR), the international trade federation representing the world’s recycling industry, India’s Hazardous waste Rules have faced continued dilution. These countries and interests never wished Convention and compliant Rules to come into force.
I submit that as part of Clean India Mission, Central Government should to regain its original stance of being a strong opponent of the international waste trade and an ardent supporter ban on toxic waste exports from the world’s richest countries to less industrialized ones. Government of India should recollect its position at the First Conference of Parties to the Basel Convention in Piriapolis, Uruguay, from 3-4 December, 1992. A. Bhattacharja, Head of the Indian delegation who pleaded with industrialized countries to stop exporting hazardous waste. “You industrial countries have been asking us to do many things for the global good — to stop cutting down our forests, to stop using your CFCs. Now we are asking you to do something for the global good: keep your own waste.”
I submit that Government of India was firm even at the Second Basel Convention Conference of Parties, in March 1994 and advocated ban on all hazardous waste exports from the world’s most industrialized countries, the members of the Organization of Economic Cooperation and Development (OECD) to non-industrialized countries like India.
It was only in 1995 that Government of India revised its position at the Third Basel Conference of Parties in September 1995 under the harmful influence of representatives of the US and Australia. This led to Indian government announcing that it was reconsidering its position on the Basel Ban.
I submit that Environment Ministry should be made to disassociate itself from the regressive statement of Shri Kamal Nath, the then Union Minister of Environment & Forests who averred, “We are against environmentally unfriendly recycling. We are not against the movement of waste, provided the recipient has adequate equipment, facility and the proper process to deal with it.” This was a direct assault on intent of Basel Convention. It was the first nail in the coffin. Consequently, India did not ratify the ‘Ban Amendment’ to the Basel Convention, which could have stopped the import of hazardous waste and stopped India from becoming a leading dumping ground. “The last damage was done at the Bali Conference on the Basel Convention when the then Minister of State for Environment Shri Namo Narain Meena said that we saw hazardous waste as recyclable material under the influence of Commerce Ministry, which has adopted the policy of free trade in hazardous waste unmindful its environmental and human cost.
I submit that US Government and ICC have been instrumental in outwitting the UN ban on hazardous waste trade through bilateral Free Trade Agreements between countries. In one of its position paper on the Basel Convention, ICC has even called for the ban on hazardous waste to be stopped by the World Trade Organization (WTO) because it is trade disruptive. This undermines the customary environmental law principles. Wikileaks has revealed how the US Government ensured that the same Shri Kamal Nath was not made the Commerce Minister again for his position in WTO negotiations in a different context.
In view of the above facts, Government should not delay its ratification of Ban Amendment anymore. The review of new Hazardous Waste Rules provides a chance to recover the lost ground and re-adopt its 1992 position and ask the rich countries to “keep your own waste” for global common good.
Dr Gopal Krishna
ToxicsWatch Alliance (TWA)
Mb: 08227816731, 09818089660