Preliminary comments on the "Hazardous and Other Wastes (Management& Transboundary Movement) Amendment Rules, 2019" :
- The Hazardous and Other Wastes (Management & Transboundary Movement) Amendment Rules, 2019 is legally flawed and suffers from poverty of imagination for environmental protection because total prohibition on import into the country is is confined only to "Solid plastic waste". The pre-existing Section 2 (2) of the Plastic Waste Management (Amendment) Rules, 2018 had exempted "export oriented units or units in special economic zones,notified by the Central Government, manufacturing their products against an order for export". In a limited way it gives an impression that it rectifies the error which was introduced through Plastic Waste Management (Amendment) Rules, 2018 by diluting the Plastic Waste Management Rules, 2016 under the influence foreign and Indian plastic wastetraders. It does not address the ongoing Transboundary Movement of hazardous waste within the territory of India. The fact remains even this amendment should have been done in the Plastic Waste Management (Amendment) Rules, 2018. These amendments required wider public publication before its notification.
- The reference to "Hazardous and Other Wastes (Management & Transboundary Movement) Rules, 2016" is noteworthy because these Rules define “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 this 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 WasteRules were amended. This term has been lifted from UN’s Basel Convention on Transboundary Movement of Hazardous Wastes and Their Disposal.
- It is contrary to the UN's Basel Convention which aims “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. Basel 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 2016 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.
- Hazardous and Other Wastes (Management & Transboundary Movement) Amendment Rules, 2019 reveals that trade in hazardous waste is happening in a business as usual manner.
- The inclusion of the provision of "importing back" defective "Electrical and electronic assemblies and components manufactured in and exported from India, if found defective" within a year of export seems to be happening under the influence foreign companies and countries. In the absence of robust regulatory mechanism in this regard, this provision can be exploited by unscrupulous traders in electrical and electronic assemblies and components. CAG must audit its implementation at the earliest opportunity.
- This provision of Hazardous and Other Wastes (Management & Transboundary Movement) Amendment Rules, 2019 must be read with the circular of Central Pollution Control Board (CPCB) dated November 2, 2018 sent to all State Pollution Control Boards (SPCBs) on the subject of "Directions Under Section 18(1)(B) of The Water (Prevention & Control of Pollution) Act, 1974 And The Air (Prevention & Control of Pollution) Act, 1981 Regarding Streamlining Of Consent Mechanism".
- This provision about exemption from requirement of consent and authorization also under the Hazardous and Other Wastes (Management & Transboundary Movement) Rules, 2016 will be deeply detrimental to the cause of environmental protection and compliance with the Hazardous and Other Wastes (Management & Transboundary Movement) Rules, 2016. Given the fact that under Water (Prevention and Control of Pollution) Act 1974 and Air (Prevention and Control of Pollution) Act 1981, it is for the State Pollution Control Boards (SPCBs) and Pollution Control Committees (PCCs) of Union Territories which give consent and authorisation under these two Acts, the provision stating that "environmental surveillance of industries should be on random basis, and SPCBs/PCCs shall evolve mechanism for that" instead of 24X7 environmental surveillance on a regular basis paves the way for very serious disruption of existing regulatory mechanisms.
- Such directions have already been implemented in some States who have exempted over 100 categories of industries from Hazardous and Other Wastes(Management & Transboundary Movement) Rules, 2016 and Water (Prevention and Control of Pollution) Act 1974 and Air (Prevention and Control of Pollution) Act 1981 without waiting for the 2019 Rules to be notified. This is fraught with unprecedented adverse consequences for environmental health and related disease burden. Such disruption is totally unacceptable.
- The condition of handing over "hazardous and other wastes generated by such industries" to "authorized actual users, waste collectors or disposal facilities" for availing these exemptions does not inspire even an iota of confidence because "disposal facilities" for hazardous wastes are almost non-existent and hazardous "waste collectors" are simply dumping or incinerating them making environmental problems more complex by making the contaminants invisible.
Press Information Bureau
Government of India
Amendment in Hazardous Waste (Management& Transboundary Movement) Rules, 2016
Dated: 06th March 2019
In order to strengthen the implementation of environmentally sound management of hazardous waste in the country, the Ministry of Environment, Forest and Climate Change has amended the Hazardous and Other Wastes (Management & Transboundary Movement) Rules, 2016 vide notification G.S.R. G.S.R. XX (E), dated 01 March 2019.
The amendment has been done keeping into consideration the “Ease of Doing Business” and boosting “Make in India” initiative by simplifying the procedures under the Rules, while at the same time upholding the principles of sustainable development and ensuring minimal impact on the environment.
Some of the salient features of the Hazardous and Other Wastes (Management& Transboundary Movement) Amendment Rules, 2019 are as follows: