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illegality of flagless Exxon Valdez condoned, July 30 judgment bans future toxic ships

Written By Krishna on Tuesday, July 31, 2012 | 3:41 AM

Press Release

illegality of flagless Exxon Valdez condoned, July 30 judgment bans future toxic ships

Violation of Supreme Court's orders of October 14, 2003 May 3 and July 6 2012 with impunity, sets a bad precedent

Role of concerned environment ministry official should be investigated

New Delhi: Concluding the 15 page judgment of July 30, 2012 in the matter of end of life US ship Exxon Valdez, Justice Altamas Kabir headed bench of Supreme Court has directed that "...in all future cases of a similar nature, the concerned authorities shall strictly comply with the norms laid down in the Basel Convention or any other subsequent provisions that may be adopted by the Central Government in aid of a clean and pollution free maritime environment, before permitting entry of any vessel suspected to be carrying toxic and hazardous material into Indian territorial waters." The fact remains that in the case of Exxon Valdez (now named MV Oriental N, IMO No. 8414520), Basel Convention has been violated. The judgment is attached.

While permitting beaching and dismantling of the end of life ship in question, the July 30, 2012 judgment reads: "Such relief would, of course, be subject to compliance with all the formalities as required by the judgments and orders passed by this Court on 14th October, 2003, 6th September, 2007 and 11th September, 2007 in the Writ Petition."

The fact is Hon'ble Court order of October 14, 2003 reads: "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.” This has not been complied with nor has it been claimed that it has been complied with.

It is quite strange that the Hon'ble Court refrained from referring to their May 3, 2012 order in matter of this end-of-life ship and July 6, 2012 judgment on the issue of shipbreaking.

The relevant part of the May 3 order which required compliance with Convention, reads: “A copy (of the application) has been provided to Mr. Ashok Bhan, learned senior counsel appearing for the Union of India and Mr. T.S. Doabia, learned senior counsel, who submits that he is appearing on behalf of the Ministry of Shipping, Government of India. Both, Mr. Bhan and Mr. Doabia, are requested to take instructions on the statements made in the interlocutory application and to inform this 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.”

There is manifest non-compliance with this order. In fact no where in the affidavits of either the shipbreaker or the agencies like Ministry of Environment & Forests, Gujarat Pollution Control Board and Gujarat Maritime Board has it been claimed that they have complied with the Convention.

Hon’ble Court in the judgment dated 06.07.2012 has considered the issue of ship breaking and observed: “…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 July 6, 2012 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.” This has not been complied with.

The July 30, 2012 order reads: "It is made clear that if any toxic wastes embedded in the ship structure are discovered during its dismantling, the concerned authorities shall take immediate steps for their disposal at the cost of the owner of the vessel, M/s Best Oasis Ltd., or its nominee or nominees." This is inconsistent with Court's earlier order, Basel Convention and the affidavits of GMB and CPCB.

Hon’ble Court's order of 20th April 2000 referred to the affidavit filed by CPCB, reads:”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.”

This has not been done nor has it been claimed that it has been done and still the ship has been allowed. CPCB is an agency of the Ministry of Environment & Forests. The role of the Environment Ministry official needs probe because he appears to have misled the Hon'ble Court. On the date of final hearing on July 23, 2012, CPCB consel had underlined the violation of the Court' order by the ship in question. Even counsel for Customs underlined that hazardous material in ship has not been verified and certified. It appears that the official in question misrepresented facts to MoEF counsel. ToxicsWatch Alliance (TWA) demands probe in the role of this official because his role since the days of Le Clemenceau and several toxic ships has been questionable.

The submission of Gujarat Maritime Board (GMB) before the Hon'ble Court's High Powered Committee on hazardous toxic wastes 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: “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.” This has been suppressed. GMB has colluded to misled the Hon'ble Court.

The judgement has a erred in stating that "I.A. No.61 of 2012 which had been filed by M/s Best Oasis Ltd. on 9th May, 2012, and I.A. No.62 of 2012 filed by Gopal Krishna on 18th June, 2012."

The fact is I.A No. 61 is subsequent to the I.A No. 62 (but numbered earlier due to registry's fault) in which Sanjay P Mehta of Hongkong based Best Oasis Company, (a subsidiary of Bhavnagar based Priya Blue Industries Pvt Ltd)had sought interim directions specifically referring to Gopal Krishna's application. Their application is attached.

In the I.A.62 application it was held that US Maritime Administration is transferring its end-of-life ships in furtherance of its Ship Disposal Policy. It is known that in the year 2000-2001, the owner of Priya Blue Industries Pvt Ltd, 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.

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. Neither teh purchase agreement nor the Bill of sale nor any evdience of ownership of the ship was submitted to the Court. The ship had changed flag from US to Panama to Sierra Leone. When it entered Indian waters it was under Sierra Leone flag but its validity had already expired. As a result as of today it is a flagless ship. This is akin to what happned in the case of Danish ship Riky which entered Indian waters under a flag of a country (ROXA) which does not exist with the collusion of Environment Ministry official. The matter is still pending in the Court. This journey of violation of Basel Convention and Hon'ble Court's order from Riky, Blue Lady, Platinum II to Exxon Valdez has ruined Alang beach and turned it in to India's most toxic hot spot and migrant workers graveyard.

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. This ship is in non-compliance with the recommendations of the Hon'ble Court constituted Inter-ministerial committee (IMC) on ship-breaking under Union Steel Ministry.

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. This was not demanded.

TWA wonders how can visual inspection by MoEF, GPCB and Gujarat Maritime Board verify presence or absence of PCBs and other hazardous substances in the absence of required laboratory facility.

The entry permission, anchoring permission and inspection was granted in violation of Supreme Court order of May 3, 2012 and order dated July 6, 2012. Anchoring has been granted even without looking at inventory submitted by the Ship for the purpose of verification.

There was 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.

In such a situation, there is still 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. Upholding UN’s Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal is a compulsion because India is a party to it.

For Details: Gopal Krishna, ToxicsWatch Alliance (TWA), Mb: 9818089660, E-mail-krishna1715@gmail.com, Web:toxicswatch.blogspot.com
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