Indian Perspective on the Basel convention and its effects:

Hazardous wastes belong to the category of special wastes having constituents of

chemicals, metals and other compounds which can cause environmental
pollution. In order to regulate and ensure environmentally sound management of
the hazardous wastes, the Govt. of India notified the Hazardous Wastes
(Management & Handling) Rules, 1989 under the Environment (Protection) Act,
1986. The Government of India has ratified the Basel Convention on the control
of transboundary movement of hazardous wastes and their disposal (under the
aegis of UNEP). Provisions and certain decisions of the Basel Convention will
have to be harmonised within the domestic legislation according to the Indias
commitment to the Convention. These will have implications on the Indian
industry and environment.

After ratification of this convention, India will be unable to source hazardous

wastes for treatment from Organization for Economic Co-operation and
Development (OECD) countries because of the ban. The convention requires
specialized treatment facilities in order to ensure an environmentally sound
recovery or disposal. Therefore, transboundary shipment of hazardous waste is
regulated by the convention. Import of hazardous waste is legally prohibited in
India but the import may be allowed for the purpose of recycling, recovery or
reuse. However, the convention is unable to prevent inflow of hazardous wastes
into India from countries that have not ratified the agreement (USA and other
northern developed countries). Industrialized countries want to dump their wastes
in developing countries such as India due to strict regulations of disposal and
management of such wastes in their own country. Restrictions imposed by the
convention aim at encouraging signatory countries to reduce generation and
disposal in safe manner.

1|Page
National Hazardous Waste Management Strategy

The hazardous waste management strategy incorporates the essence of National

Environmental Policy 2006, relevant multilateral environmental agreements like
Basel Convention and the national regulations. It deals with effective
management of hazardous wastes to avoid environmental pollution call for
appropriate strategy for regulatory bodies, generators, recyclers and operators.
The strategy also facilitates implementation of action plan as per National
Environment Policy 2006 and obligations under the Basel Convention.
Application of polluter pays principle, inventory of hazardous waste generation,
cement kilns for incineration, common treatment, storage and disposal facilities,
interstate transportation, safe disposal, illegal dump sites, remediation and
strengthening of the infrastructure of regulatory bodies are some core areas of
immediate attention in this field. Further India has enacted the following acts in
accordance of the Basel convention.

Hazardous Waste (Management and Handling) Amended Rules, 2003.

The Ministry of Environment and Forests has promulgated Hazardous Wastes

(Management and Handling) Rules, 1989 and amended the same in 2000 and
2003 for effective management and handling of hazardous wastes. These rules
define hazardous waste as any waste which by reason of any of its physical,
chemical, reactive, toxic, flammable, explosive or corrosive characteristics
causes danger, or is likely to cause danger, to health or environment, whether
alone or when on contact with other wastes or substances. There are 36 types of
industrial processes listed in schedule-I of these rules. Wastes containing Hg, As,
waste Asbestos (dust or fibers), waste oil etc., are in the list of banned
wastes for import and export. The 2003 amendment rules have excluded
biomedical wastes, MSW wastes and wastes related with lead batteries from the
list of hazardous wastes as these are covered under special rules. These rules have

2|Page
also listed the hazardous wastes mainly mercury, its compounds, clinical and
related wastes which are prohibited for import and export.

The Hazardous Wastes (Management, Handling and Transboundary

Movement) Rules, 2008

The rules establish responsibility for safe and environmentally sound handling of
wastes by any occupier of hazardous waste. Recycling is defined as
reclamation or reprocessing of hazardous waste in an environmentally sound
manner for the original purpose or other purposes. The occupier and operator of
a facility shall be responsible for proper collection, reception, treatment, storage
and disposal of hazardous wastes. It is also the duty of occupier and operator to
prevent accidents and limit their consequences, provide information, training and
equipment to persons working on-site to ensure safety. A person engaged in all
types of handling of such wastes must obtain an authorization from concerned
SPCB. The occupier or handler may store hazardous wastes for a period up to 90
days. He has to keep the records of sale, transfer, storage, recycling and
reprocessing of such wastes and shall make it available for inspection. Any
occupier may only sell or transfer it to a recycler having a valid registration from
the CPCB. In order to use hazardous wastes for energy generation, the occupier
has to obtain approval from CPCB. Any persons who wish to operate a facility,
for the management of hazardous wastes must have treatment, storage and
disposal facility (TSDF) in compliance with the technical guidelines issued by
the CPCB. The state government, occupier or any association shall identify
possible sites for disposal facility but only after preliminary impact assessment
studies. In case of interstate transport of hazardous wastes for final disposal, No
Objection Certificate is must condition from SPCBs of both states. The
occupier, transporter and operator of a facility shall be liable for damages caused
to the environment resulting due to improper handling and disposal of hazardous
waste. In addition to these rules, the government has moved to enact into
3|Page
legislation, additional incentives for industries to comply with environmental
provisions.

In this vein, the Public Liability Insurance Act, 1991 was adopted to require
industries dealing with hazards and to ensure against accidents or damages caused
by pollutants. The National Environmental Tribunal Act, 1995 provides
provisions for expeditious remedies to parties injured by environmental crimes.
Legislation on a Community Right to Know, 1996 has also been adopted to
provide more access to information regarding potential hazards from industrial
operations.

Biomedical Waste (Management and Handling) Rules, 1998 amended

2011.

Management of biomedical wastes (BMW) is governed by the Biomedical Waste

(Management and Handling) Rules, 1998 and are published under EPA, 1986.
Prior to 1998, the management of healthcare waste in India was the responsibility
of municipal or governmental authorities. Hospitals generate various kinds of
wastes from wards, operation theatres and outpatient areas. These wastes
include bandages, cotton, soiled linen, body parts, sharps (needle, syringes
etc), medicines (discarded or expired), laboratory wastes etc. Other wastes
generated in healthcare settings include radioactive wastes, mercury containing
instruments and polyvinyl chloride (PVC) plastics. These are among the most
environmentally sensitive by-products of healthcare. Tuberculosis, pneumonia,
diarrhoeal diseases, tetanus, whooping cough etc., are other common diseases
spread due to improper waste management. The government hospitals and major
private hospitals have their own arrangement for treatment of biomedical waste.
The management of health care waste in India is bleak. It is common scene in
India that biomedical waste generated from health care facilities in most of the
places are collected without segregation and are disposed in municipal bins

4|Page
located either inside or outside the facility premises. These rules apply to all
persons who generate, collect, receive, store, transport, treat, dispose, or handle
biomedical waste in any form.

The Batteries (Management and Handling) Rules, 2001 Amendment

2010

The Batteries (Management and Handling) Rules, 2001 amended in 2010 apply
to every manufacturer, importer, re-conditioner, assembler, dealer, recycler,
auctioneer, consumer and bulk consumer involved in manufacture, processing,
sale, purchase and use of batteries. They also ensure that used batteries are
collected back for the purpose of recycle or proper disposal. These rules also
required to file a half-yearly return of their sales and buy-back to the concerned
state board, set up collection centers and ensure that used batteries are sent only
to the registered recyclers without any damage to the environment. It is also the
duty of producers and others to raise public awareness, publications, posters or
by other means against the hazards of lead. It is the responsibility of consumers
to return their used batteries only to the dealers at designated collection centers
to avoid environmental damage. The importer shall get himself registered with
MoEF. Only one export-import (EXIM) code exists for both old and new
computers, preventing targeted compliance monitoring. Furthermore, imports are
often falsely declared to be for charity, going instead to informal recyclers or
becoming e-waste within two or three years. Lacking an effective enforcement
mechanism and awareness throughout the country, the legislation remains
fruitless, as the success at selected urban areas cannot form the basis of ideal
output as expected.

5|Page
Conclusion:

The Basel Convention seeks to assume a moral high ground on environment and
public health based on unilateral measures that are in complete disregard for free
market principles, economic realities of developing countries, and that are
counterproductive to the objectives of the Convention.

Basel has been a success in that it provides a forum for transboundary hazardous
waste issues. Also, regulations banning hazardous wastes in electronics can be
somewhat attributed to Basels existence. But, electronic waste from the U.S. was
found dumped in environmentally unsafe ways in Nigeria in 2006. Even more,
though EU has implemented legislation to enforce Basel, 48 percent of shipments
were found to be illegal during a week long investigation of seventeen ports in
nine EU countries in 2005. Shipments included containers of domestic waste
from the United Kingdom destined for India and cable wastes from Sweden
bound for China. Instead of relying on Basel to prevent unsafe hazardous waste
management, Basel advocates should pursue with greater force the minimization
of generation and, especially in countries where citizens are vulnerable,
development of NGOs.

Despite some loopholes and ambiguities, the Convention on the Control of

Transboundary Movements of Hazardous Wastes and their Disposal (Basel, 22
March 1989) should be considered a major achievement in international
environmental law. One of its main merits is the establishment of the concept of
prior informed consent, according to which the State of export must previously
notify any intended movement of hazardous waste to the State of import.

6|Page
 IN THE SUPREME COURT OF INDIA

Decided On: 06.09.2007

________________________________________________________________
Research Foundation for Science . Appellants

Vs.

Union of India (UOI) and Anr ....Respondent

________________________________________________________________

AIR 2007 SC 3118,

Hon'ble Judges:

Arijit Pasayat and; S.H. Kapadia, JJ

Subject: Environment

Case Note:

A short question which arises for determination in this IA is whether this

Court should grant permission for dismantling of the ship "Blue Lady" at
Alang, Gujarat.

ORDER

2. The "Blue Lady" ex SS Norway was a passenger liner built at Chantier De

Altantic, St. Nazaire, France in 1961. It was a steam turbine driven vessel with a
power and rating of 30,000 KW and 40,760 HP respectively. Now the vessel is
registered as a Barge under the flag of Bahamas vide official number 710763.

7|Page
The vessel is very luxurious in it's kind and many dignitaries like President of
America, Queen of England have travelled during it's golden period. The said
ship was beached on 15/16.8.2006 off the Alang coast. The said ship was the
passenger ship. It was constructed in 1952. It originated from France. Its last
origin was from Norway. The ship is about 291 mt. long. It is 34 mt. wide. It has
the capacity of 45886 MT. It has 16 floors. It has 1400 rooms for passengers
accommodation. It has restaurant, cinema, health club and free shopping
complex.

3. Alang is located on the west coast of Gujarat. It is the largest ship recycling
yard in the world. It is one of the choicest ship-scrapping destination for the ship
owners around the world. There are 183 plots in all to carry out the ship recycling
activities. Till today Alang has provided approximately 23 million tonnes of steel
in the last 10 years. On 17.2.2006 when the above writ petition came up for
hearing before this Court, we found the controversy concerning ship-breaking a
recurring controversy. Therefore, this Court decided to lay down norms
concerning infrastructure, capacity of Alang to handle large volume of ship-
breaking activity, safeguards to be provided to the workers who were likely to
face health- hazard on account of the incidence of ship-breaking activity, the
environmental impact assessment, regulation of the said activity and strict
regulation of the said activity. Accordingly, this Court constituted a Committee
of Technical Experts to submit a report on the aforestated aspects.

4. We quote hereinbelow the said order dated 17.2.2006: "It is brought to our
notice that the ship Clemenceau has been directed to be taken back to France.
Therefore, immediate controversy relating to Clemenceau ship seems to be over.
But the problem is a recurring one. First and foremost requirement as of today is
to find out the infrastructural stability and adequacy of the ship breaking yard at
Alang. It has to be found out whether the same are operational/operating in a way
that environmental hazards and pollution are avoided and/or equipped to meet the

8|Page
requirements in that regard. For that purpose, it is necessary to constitute a
Committee of technical experts who can, after obtaining views and inviting
suggestions from those who would like to give them to find out whether the
infrastructure as existing at Alang presently is adequate. If according to the
Committee, it is not adequate it shall indicate the deficiencies, and shall also
suggest remedial measures to upgrade the infrastructural facilities. For this
purpose, Union of India shall, as early as practicable, constitute a Committee of
technical experts, some of them having Navy background, preferably retired
officers. The Committee shall submit its report to this Court within eight weeks.
The expenses of the Committee shall be met by the Ministry of Environment and
Forests. Since at various points of time various guidelines have been indicated, it
would be appropriate if they are properly codified to be followed scrupulously by
all concerned including the Government authorities."

5. In continuation of the said order dated 17.2.2006 a further order was passed by
this Court on 12.3.2007 calling for a further report by TEC in which this Court
directed inclusion of Gujarat Maritime Board (GMB) and Gujarat Pollution
Control Board (GPCB) to assist this Court on three aspects, namely, pre-
conditions to be satisfied by the recycler for dismantling and reusability of 80%
of the asbestos. This Court also sought assistance of various authorities, including
the petitioner herein, on steps to be taken to control the environmental impact of
asbestos dust likely to be generated in the process of dismantling. We quote
hereinbelow the said order in extenso:

"Having heard learned counsel for the parties, we are of the view that a further
report by the T.E.C. is required to indicate as to whether conditions stipulated
have been complied with before any action can be taken on the dismantling plan.
Let the applicant in I.A. No.34 place materials before T.E.C. as to how and in
what manner compliance has been done. While deciding the acceptability of the
stand of the applicant, the T.E.C. shall involve the Gujarat Maritime Board and

9|Page
the Gujarat Pollution Control Board and take note of their views. In the report
apart from examining the general compliance of the conditions, specific focus has
to be drawn on three particular aspects, namely,

(a) whether pre-conditions for dismantling have been complied with; (b) whether
80% of the asbestos is reusable as is contended by the applicant; (c) what steps
have been taken to control the environmental impact of asbestos dust generated
in the process of dismantling. The T.E.C. shall also suggest as to which agency
shall oversee and monitor the dismantling in case it recommends acceptance of
the dismantling plan. The report shall be submitted within six weeks. The other
aspects relating to the reversibility or impermissibility of the beaching, manner
of dealing with hazardous from asbestos and other hazardous material shall be
considered after the receipt of the report from the T.E.C. The T.E.C. which was
constituted pursuant to the order of this court having submitted its report is stated
to have become functus officio shall examine the matter as directed."

6. Ultimately, the TEC submitted its report on the aforestated aspects on

10.5.2007. That report has been accepted by this Court vide order dated 6.9.2007
in writ petition no. 657/95 etc.. We accepted that report mainly because it is all
pervasive. It contains opinions of experts including retired navel officers. It
indicates State-of-the-Art mechanism to regulate removal of asbestos. The report
clarifies that "beaching" is an irreversible process. TEC has also examined the
recycling plan and the dismantling plan submitted by the recycler. Apart from the
GMB and GPCB, various other authorities like Gujarat Enviro Protection &
Infrastructure Ltd. (GEPIL) have also contributed their knowledge and expertise
in the preparation of the report dated 10.5.2007. There was also an apprehension
rightly expressed by the petitioner regarding radio active material on board the
vessel "Blue Lady". Therefore, an immediate inspection of the said vessel
beached at Alang since 16.8.2006 was undertaken by Atomic Energy Regulatory
Board (AERB) and by GMB. The apprehension expressed by the petitioner was

10 | P a g e
right. However, as the matter stands today, AERB and GMB have certified that
the said vessel Blue Lady beached in Alang no more contains any radio active
material on board the ship.

7. By the said report dated 10.5.2007, which has been accepted by us vide order
dated 6.9.2007, TEC has also recommended grant of permission for dismantling
of the ship "Blue Lady" at Alang (Gujarat) in accordance with the recycling plan
submitted by M/s Priya Blue Industries Pvt. Ltd. (recycler). Under the said report,
TEC has stated that regular monitoring of the ship-breaking operations of Blue
Lady shall be undertaken by the competent authority mentioned in the report so
as to ensure strict compliance with the guidelines given by TEC in respect of
safety and health of the workmen and environment. At this stage, we may mention
that breaking of the vessel Blue Lady will provide to this country 41000 MT of
steel and it would give employment to 700 workmen.

8. In his Keynote Address, on 'Global Constitutionalism', reported in Stanford

Law Review vol. 59 at p. 1155, Lord Goldsmith, Her Majesty's Attorney General
(UK), stated that British Constitution though unwritten is based on three
principles, namely, rule of law, commitment to fundamental freedoms and
principle of proportionality. European Convention on Human Rights ("ECHR")
also refers to the concept of balance.

9. In the case of Research Foundation for Science Technology National Resource

Policy v. Union of India and anr. (2005) 10 SCC 510 a Division Bench of this
Court has held that "precautionary principle" is a part of the concept of
sustainable development. We quote hereinbelow paragraphs 16 and 43 of the said
judgment, which are as follows:

"16. The legal position regarding applicability of the precautionary principle and
polluter-pays principle which are part of the concept of sustainable development
in our country is now well settled. In Vellore Citizens' Welfare Forum v. Union

11 | P a g e
of India (1996) 5 SCC 647 a three-Judge Bench of this Court, after referring to
the principles evolved in various international conferences and to the concept of
"sustainable development", inter alia, held that the precautionary principle and
polluter-pays principle have now emerged and govern the law in our country, as
is clear from Articles 47, 48-A and 51-A( g ) of our Constitution and that, in fact,
in the various environmental statutes including the Environment (Protection) Act,
1986, these concepts are already implied. These principles have been held to have
become part of our law. Further, it was observed in Vellore Citizens' Welfare
Forum case that these principles are accepted as part of the customary
international law and hence there should be no difficulty in accepting them as part
of our domestic law. Reference may also be made to the decision in the case of
A.P. Pollution Control Board v. Prof. M.V. Nayudu (1999) 2 SCC 718 where,
after referring to the principles noticed in Vellore Citizens' Welfare Forum case
the same have been explained in more detail with a view to enable the courts and
the tribunals or environmental authorities to properly apply the said principles in
the matters which come before them. In this decision, it has also been observed
that the principle of good governance is an accepted principle of international and
domestic laws. It comprises of the rule of law, effective State institutions,
transparency and accountability and public affairs, respect for human rights and
the meaningful participation of citizens in the political process of their countries
and in the decisions affecting their lives. Reference has also been made to Article
7 of the draft approved by the Working Group of the International Law
Commission in 1996 on "Prevention of Transboundary Damage from Hazardous
Activities" to include the need for the State to take necessary "legislative,
administrative and other actions" to implement the duty of prevention of
environmental harm. Environmental concerns have been placed on the same
pedestal as human rights concerns, both being traced to Article 21 of the
Constitution. It is the duty of this Court to render justice by taking all aspects into
consideration. It has also been observed that with a view to ensure that there is

12 | P a g e
neither danger to the environment nor to the ecology and, at the same time,
ensuring sustainable development, the court can refer scientific and technical
aspects for an investigation and opinion to expert bodies. The provisions of a
covenant which elucidate and go to effectuate the fundamental rights guaranteed
by our Constitution, can be relied upon by courts as facets of those fundamental
rights and hence enforceable as such (see People's Union for Civil Liberties v.
Union of India (1997) 3 SCC 433. The Basel Convention, it cannot be doubted,
effectuates the fundamental rights guaranteed under Article 21. The right to
information and community participation for protection of environment and
human health is also a right which flows from Article 21. The Government and
authorities have, thus to motivate the public participation. These well-enshrined
principles have been kept in view by us while examining and determining various
aspects and facets of the problems in issue and the permissible remedies.

43. Another aspect which deserves to be noticed is about the effect of ship-
breaking activity covered by TOR (14). We are not suggesting discontinuing of
ship- breaking activity but it deserves to be strictly and properly regulated. When
the ship arrives at a port for breaking, the authorities concerned have to be vigilant
about the hazardous waste which may be generated if appropriate timely action
by various agencies, in particular, the Maritime Board and SPCB are not taken.
The major ship-breaking activity in India is at Alang in the State of Gujarat and,
therefore, the Gujarat Maritime Board and Gujarat SPCB have to be alive to the
consequences of the appropriate steps to be taken before the breaking activities
start. According to the recommendations of HPC, the Inter-Ministerial
Committee comprising Ministry of Surface Transport, Ministry of Steel, Ministry
of Labour and Ministry of Environment should be constituted with the
involvement of labour and environment organisations and representatives of the
ship-breaking industries. (emphais supplied)

13 | P a g e
10. The concept of "balance" under the principle of proportionality applicable in
the case of sustainable development is lucidly explained by Pasayat, J. in the
judgment of this Court in the case of T.N. Godavarman Thirumalpad v. Union of
India and Ors. reported in (2002) 10 SCC 606 vide para 35 which reads as under:

"35. It cannot be disputed that no development is possible without some adverse

effect on the ecology and environment, and the projects of public utility cannot
be abandoned and it is necessary to adjust the interest of the people as well as the
necessity to maintain the environment. A balance has to be struck between the
two interests. Where the commercial venture or enterprise would bring in results
which are far more useful for the people, difficulty of a small number of people
has to be bypassed. The comparative hardships have to be balanced and the
convenience and benefit to a larger section of the people has to get primacy over
comparatively lesser hardship."

The above paragraphs indicate that while applying the concept of "sustainable
development" one has to keep in mind the "principle of proportionality" based on
the concept of balance. It is an exercise in which we have to balance the priorities
of development on one hand and environmental protection on the other hand.

11. India after globalization is an emergent economy along with Brazil, Russia
and China. India has economic growth of above 9%. However, that growth is lop-
sided. A large section of the population lives below poverty line. India has largest
number of youth in the world. Unemployment is endemic. Article 21/14 is the
heart of the Chapter of fundamental rights. Equality of opportunity is the basic
theme of Article 14. In an emergent economy, the principle of proportionality
based on the concept of balance is important. It provides level playing field to
different stakeholders. Ship breaking is an industry. When we apply the principle
of sustainable development, we need to keep in mind the concept of development
on one hand and the concepts like generation of revenue, employment and public

14 | P a g e
interest on the other hand. This is where the principle of proportionality comes
in. Even in the case of Blue Lady, the figures indicate that 700 workers would be
employed in ship breaking. Further, 41000 MT of steel would be made available.
To that extent, there will be less pressure on mining activity elsewhere. Even in
the judgment, referred to above, vide para 43, it has been observed that this Court
is not in favour of discontinuance of ship-breaking activity. However, this Court
has held that the said activity needs to be strictly and properly regulated. This
concept of balancing is given importance by Dr. Amartya Sen in his book
"Development as Freedom". Today ship-breaking provides resources not only in
terms of steel but also in terms of employment, skill

and capability. Competition exists in the said business of ship-breaking amongst

Bangladesh, Pakistan and India. In our view, if "capability" is a resource with our
skilled workers it needs to be protected by strict implementation of Health Hazard
Preventive Measures suggested in the report of TEC and implementation of
Recycling Plans, generation of pollutants like asbestos to the extent of 20% can
be almost eliminated. As stated, 85% of asbestos is in form of ACM in panels
which is reusable. Therefore, the report provides State-of-the-Art mechanism
which is the key element of "sustainable development".

12. One of the main objections raised on behalf of the petitioner was regarding
non-quantification of two contaminants, namely, ACM and PCB (rubber). At this
stage, we may clarify that ACM exists as material of construction in various
vessel components like partitions, walls, ceilings etc. which are an integral part
of the vessel structure. In the present case, the vessel does not contain single
kilogram of asbestos and/or ACM as cargo. However, there is presence of ACM
as "material of construction" in various vessel components like partitions, walls,
ceiling etc.. Major quantity of ACM (85%) is in the partitions and ceilings of
rooms and galleries. These ACMs are in the panels. TEC, in its report, stated that
recyclable material alone can be sold, therefore, PCB cannot be sold. The report

15 | P a g e
further indicates that the quantity of PCB in the present case has to be dumped in
land-fills. It is important to note that there are only two alternatives, namely,
incineration or dumping PCB in land-fills. In both the cases, there is likelihood
of pollution. As regards asbestos is concerned, we find that 85% is insulation and
panels. This is where the dismantling plan has to be applied. It is this plan which
takes care of the panels and insulation containing asbestos. Under section 3.3.2,
the recycler was required to submit a dismantling plan containing requirements
to be complied with. We quote hereinbelow section 3.3.2 of the report of the
Committee of Technical Experts on Ship Breaking Activities dated 30.8.2006:
"3.3.2. Ship Specific Dismantling Plan:

Before starting the recycling process, the recycler should submit a Dismantling
Plan to the authorities, which should include:

a) Details about the ship, and in particular, a fair assessment of hazardous

wastes/hazardous materials.

b) Ship breaking schedules with sequence of work.

c) Operational work procedures.

d) Availability of material handling equipment and PPEs.

e) Plan for removal of oil and cleaning of tanks.

f) Hazardous waste handling and disposal plan.

g) 'Gas-free and fit for hot work' certificate issued by the Department of
Explosives, or any competent agency authorized by the Department of
Explosives.

h) Identification and marking of all non-breathable spaces by the Recycler.

16 | P a g e
i) Identification and marking of all places containing/likely to contain hazardous
substances/hazardous wastes.

j) Confirmation to the effect that ballast water has been exchanged in the high
seas. The tasks should address all the three phases of recycling, i.e.

i) Preparation phase.

ii) Dismantling phase.

iii) Waste stream management

k) Asbestos being a major area of concern, the scheme for removing asbestos,
and asbestos containing materials (ACMs) on board, and on shore, should be
specifically provided. The plan should include arrangements for handling,
treatment and disposal. Locations having asbestos/ACMs should be marked
before commencing dismantling operations.

l) Systems and procedures to be followed to document and keep track of all

hazardous waste generated during recycling, as well as hazardous substances
found onboard the ship, and their transport to the disposal facility or registered
recycling facility should be provided."

13. The report dated 10.5.2007 of TEC states that the Dismantling Plan submitted
by recycler in the case of Blue Lady complies with section 3.3.2. As stated above,
the "precautionary principle" is embedded in the doctrine of sustainable
development. In the present case, one of the main apprehensions, justifiable,
concerns removal of ACM and PCB from engine room, vent room and insulated
pipelines. According to the removal plan, all major quantity of ACM (85%) is in
form of wall partitions, ceiling and roofing in rooms and gallery. It is reusable.
Therefore, the panels, partitions, ceilings etc. have to be removed in such a way
that the ACMs are not damaged. The removal plan submitted by the recycler has

17 | P a g e
been approved by the TEC. Similarly, air monitoring has to be conducted for the
air-borne ACM, if any. For that purpose the Committee has recommended
appropriate respiratory protection to be provided to the workmen. For each
category of work to be done in different areas of the vessel, gears have been
provided to the workmen in the form of whole body coveralls, gloves, safety
shoes, helmet, safety goggles etc. Similarly, as regards waste generation, the TEC
report suggests by way of protection air monitoring respiratory protection to
employees, leak tests, negative pressure checks etc. Similarly, storage of
contaminated wastes in the land-fills has also been incorporated in the
recommendations of the TEC. Therefore, in our view, in the light of the above
conditions to be fulfilled by the recycler, the principle of sustainable development
based on the concept of "balance" stands satisfied.

14. We may mention one important aspect. Asbestos in the panel exists even in
false ceiling constructed in commercial establishments. It is only when those
panels are broken that asbestos as a hazardous substance emerges. In the present
case, 85% of the asbestos is in the panels and insulation that quantity is reusable.
As far as dismantling is concerned, the plan complies with section 3.3.2.
However, it is likely that in some cases asbestos as a substance may emerge and,
therefore, the report of TEC has taken care to look into and approve the Recycling
Management Plan. In our view, the report of TEC is foolproof. It has taken into
account international standards to regulate ship-breaking activity. The quantity of
PCB has been determined by Gujarat Enviro Protection & Infrastructure Ltd.
("GEPIL"). There is NOC given by GMB as also by GPCB in the matter of ship-
breaking of the ship "Blue Lady". The report dated 10.5.2007 has evolved State-
of-the-Art mechanism to regulate removal of asbestos. Recycling is a key element
of sustainable development. The Committee has examined each and every aspect
concerning recycling and dismantling of the ship "Blue Lady". Lastly, we may
point out that there is no dispute that on 15/16.8.2006 the vessel beached off

18 | P a g e
Alang coast. It is not in dispute that the process of beaching is irreversible. Taking
into account the contours of TEC report dated 10.5.2007 and the opinion of TEC
that the recycler M/s Priya Blue Industries Pvt. Ltd. has complied with the norms
regarding dismantling and recycling, we accept the report of the TEC dated
10.5.2007 and we accordingly grant permission to the said recycler to dismantle
the said ship "Blue Lady" as recommended by TEC (see: para 12 of the TEC
report dated 10.5.2007).

15. Accordingly the I.A. stands disposed of.

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 IN THE SUPREME COURT OF INDIA

Civil Appeal No. 7660 of 1997 Decided On: 05.01.2005

________________________________________________________________

Research Foundation for Science Technology

and Natural Resources Policy... Appellants

Vs.
Union of India (UOI) and Anr.Respondent

Writ Petition (C) No. 657 of 1995 SLP (C) No. 16175 of 1997
[2005 (2) JCR 294 (SC)]

Hon'ble Judges:

Y.K. Sabharwal and S.H. Kapadia, JJ.

Subject: Environment

Acts/Rules/Orders:
Environment (Protection) Act, 1986; The Hazardous Wastes (Management and
Handling) Rules, 1989 - Rules 3, 15(2); Constitution of India - Articles 7, 21, 47,
48A and 51A

Case Note:

Constitution - Environment (Protection) Act, 1986 - The Hazardous Wastes

(Management and Handling) Rules, 1989 - Rules 3, 15(2) - Constitution of

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India - Articles 7, 21, 47, 48A, 51A Hazardous Waste Dumping of
Precautionary Principle and polluter pays principle Applicability of
Report of High Powered committee relating to presence of Hazardous waste
oil in 133 containers lying at Nhava Sheva Port Illegal import of waste oil
in 133 containers in garb of lubricating oil by importers Issue of show cause
notices to 15 importers to show as to why consignment not to be ordered to
be re-exported or destroyed at their cost Issue as to appropriate directions
for dealing with consignments in question on basis of precautionary
principle and polluter pays principle Precautionary principle and polluter
pays principle held fully applicable Recommendation of Monitoring
Committee that only appropriate course to protect environment was to
direct destruction of consignments by incineration Direction given for
destruction of 133 containers expeditiously by incineration at the cost of
importers Importers held liable to pay amounts to be spent for destroying
hazardous waste on basis of precautionary principle and polluter pays
principle

JUDGMENT

Y.K. Sabharwal, J.

1. Considering the 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, and also having regard to the magnitude of the
problem as a result of failure of the authorities to appreciate the gravity of
situation and the need for prompt measures being taken to prevent serious and
adverse consequences, a High Powered Committee (HPC) was constituted by this
Court with Prof.M.G.K. Menon as its Chairman, in terms of order dated 30 th
October, 1997. The Committee comprised of experts from different disciplines

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and fields and was required to examine all matters in depth relating to hazardous
waste.

2. On consideration of the detailed reports submitted by the HPC various

directions have been issued by this Court from time to time. Presently, we are
concerned with the presence of hazardous waste oil in 133 containers lying at
Nhava Sheva Port as noticed by HPC. On the directions of this Court, the oil
contained in the said 133 containers was sent for laboratory test to determine
whether same is hazardous waste oil or not. It has been found to be hazardous
waste.

3. On consideration of report of HPC, the result of laboratory test and entire

material on record, this Court came to the prima facie conclusion that importers
illegally imported waste oil in 133 containers in the garb of lubricating oil. In
terms of the order dated 25th September, 2003, notices were directed to be issued
to 15 importers who imported the said consignment as also to the Commissioner
of Customs. The importers were directed to show cause why the consignment
shall not be ordered to be re-exported or destroyed at their cost. Since, the
Ministry of Environment and Forests had spent a sum of Rs. 6.35 lakhs on the
laboratory tests, the importers were also required to show cause why they said
amount be not recovered from them and why all of them shall not be directed to
make payment of compensation on polluter pays principle and other action taken
against them.

4. The affidavits showing cause were filed by the importers. During the course of
hearing, one of the contentions urged on behalf of the importers was that in
respect of consignments in question, adjudicating proceedings were pending
before Commissioner of Customs, Mumbai and this Court may, therefore, defer
the decision on the aspect of re-export or destruction of the goods. In the order
dated 11th March, 2004, it was observed that for the purpose of present

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proceedings, it is strictly not necessary to await the final decision of adjudication
proceedings but a report from the Commissioner of Customs may assist the court
in deciding the aspects indicated in the order dated 25th September, 2003. In this
view, the Commissioner of Customs was directed to send a report to this Court
on the question whether the consignment in issue is waste oil within the meaning
of the term 'waste oil' as per Basel Convention or Hazardous Waste Rules, 1989
as amended in the year 2000 and/or as amended in the year 2003 also having
regard to the relevant notifications issued on this aspect. The Commissioner of
Customs was directed, to give reasonable opportunity to the importers to put forth
their viewpoint before him while examining the matter and was further directed
to associate the Monitoring Committee that was constituted in terms of orders
dated 14th October, 2003 reported in 2003 (9) SCALE 303. The question whether
any further testing is required to be done as claimed by the importers was left to
be decided by the Commissioner in consultation with the Monitoring Committee.

5. Detailed reports have been filed by Commissioner of Customs (Imports),

Mumbai and the Monitoring Committee.

6. The report of the Commissioner of Customs sets out a brief history of the case,
history of various Conventions and Laws formulated thereupon from time to time,
correlating the same to the various test findings.

The brief history, inter alia, states that:

"In the month of August-September 2000, the Central Intelligence Unit, New
Custom House, Mumbai developed intelligence that large volumes of Furnace
Oil were to be imported as containerized cargo, at the Jawaharlal Nehru Port at
undervalued prices. Accordingly the Central Intelligence Unit maintained a
discreet watch at such consignments of Furnace Oil imported at JN Port.
Emphasis was laid on Furnace oil stuffed in containers, as the same was quite
unusual. Furnace Oil is basically imported in bulk on account of its large

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volumetric requirements by the industry and its relatively low value makes its
import as containerized cargo economically unviable unless the value is
suppressed, or some other miss-declaration was restored to, to offset the increased
cost of packing and transportation in containers. True to the intelligence gathered,
a large number of consignments of Furnace oil, packed in containers arrived at
JN port in Aug-Sept and the same were detained for further investigation. In all
these cases the declared prices were in the range of US$ 90 to 125 per MT as
against the erstwhile international price of US$ 150, when imported in bulk.

During the course of the investigation, samples were sent to the departmental
laboratory for conducting tests. The standard reference parameters available
pertained to those of Fuel Oil under BIS 1593-1982. Under these standards certain
characteristics like Acidity, Ash content, Flash point, Kinematics viscosity,
Sulphur content and Water content for Fuel oils have been prescribed by the
Bureau of Indian Standards and depending on the specifications the fuel oils get
divided into four grades. It is pertinent to note that these standards do not define
waste oil or hazardous wastes.

Initial testing of samples, by the Custom House Laboratory, drawn from some of
the consignments indicated that the goods were not Furnace oil. The Laboratory,
however, could not categorically state whether the samples were used/waste oil,
as they did not have the standards/specifications of used/waste oil. Inquiries made
with I.O.C. and H.P.C.L also revealed that though they could test and report
whether the oil was conforming to the standards of Fuel/Furnace oil but they were
not in a position to state whether the same were used/waste oil. As categorical
test reports were not forthcoming it was decided to get the samples tested and an
opinion obtained from the Central Revenue Control Laboratory (CRCL), New
Delhi. Fourteen samples, pertaining to Vidya Chemical Corporation, PCS
Petrochem, Shiv Priya Overseas, Royal Implex, Eleven Star Esscon and Valley
International, were accordingly forwarded to CRCL for testing and their opinion

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on 24.08.2000. The test results forwarded by the CRCL in all the 14 samples
indicated that none of the samples tallied with the specifications of Furnace Oil
and all were off specification material i.e. waste oil. Thereafter the CIU seized all
the consignments involving 158 containers. One consignment comprising of 25
containers was conditionally released on execution of Bank Guarantee for the
differential Duty. Thus a total of 133 containers were left.

On 5.10.2001 the MPCB forwarded a final report from the UP to the Custom
House wherein it was stated that the halogen content tests were done at the
Shriram Institute of Industrial Research (SIIR), New Delhi and the PCB content
tests were done at the National Institute of Oceanography, Goa. The report
concluded that all the 20 samples sent to the IIP were found to be hazardous.

In regard to Basel Convention, the report states as under:

"The Basel Convention on the Control of Trans boundary Movements of

Hazardous Wastes and their Disposal was adopted by the conference of the
Plenipotentiaries on 22.03.1989. Article I of the Convention, dealing with the
scope of the convention, defined 'Hazardous Wastes' as follows:

(a) Wastes that belong to any category contained in Annexure I, unless they do
not possess any of the characteristics contained in Annexure III; and

(b) Wastes that are not covered under paragraph (a) but are defined as or are
considered to be, hazardous wastes by the domestic legislation of the party of
export, import or transit.

All these definitions and various clauses in the Convention indicate that the
contents of the convention cannot be seen in isolation to the follow-up laws
framed in this regard by the individual member countries. The contents of the
Convention are only in the form of guidelines to the member nations and the final
question of whether the material is Hazardous Waste or not cannot be answered

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on the basis of the contents of the Convention alone. With reference to the
presence of PCBs in waste oils, the National Laws framed need to be examined
to categorically state whether the subject cargo is hazardous or not. The
contention of all the importers that their material had not violated the 50 ppm
limit prescribed in the Basel Convention and were thus not Hazardous Waste has
not strength if the same are not examined in the light of the Laws framed by the
Country in the process of aligning with the recommendations of the Convention
as the contents of the Convention are by themselves not any Law that could be
implemented (to be discussed later)."

7. The report makes a detailed reference to The Hazardous Wastes (Management

and Handling) Rules, 1989 as introduced in 1989 and amendments effected in
January 2000 and in the year 2003. In regard to amendments made in January
2000 where after the imports were made, *he report notices as under :

"For the purpose of import, Rule 3(i) (c) defined Hazardous Waste as those listed
in List 'A' and 'B' of Schedule-3 (Part A) if they possessed any of the hazardous
characteristics listed in Part-B of Schedule.

List A of Schedule 3 is a reflection of List A as Annex III of the Basel Convention

and the hazardous wastes appearing in this list of Schedule 3 are restricted and
cannot be allowed to be imported into the country without DGFT Licence. In this
list attention is drawn to the entry 'Waste mineral oils unfit for their originally
intended use' against Basel No A 3020. Such Waste mineral Oils would be
characterized as hazardous if they possess any of the Characteristics enumerated
in Part B of Schedule 3. The presence of PCB contents in Waste mineral oils
renders the material carcinogenic, bio accumulative and ecotoxic. Therefore, any
consignment of Waste mineral Oil having PCB would be rendered Hazardous."

26 | P a g e
8. Thus, from the rules, it is clear and evident that the presence of PCB contents
in any consignment of waste mineral oil would render such oil as hazardous
waste.

9. Noticing that the entire cargo had been imported without proper licence and its
movement to the Country is illegal, reference has been made in the report to Rule
15(2) which provides that

(i) the waste in question shall be shipped back within thirty days either to the
exporter or to the exporting country or (ii) shall be disposed of within thirty days
from the date of off-loading subject to inability to comply with Sub-rule 2(i), in
accordance with the procedure laid down by the State Pollution Control Board or
Committee in consultation with Central Pollution Control Board.

10. In regard to the possibility of re-export of the cargo, reference has been made
to Article 9(2)(a) of the Basel Convention which provides that in the case of
illegal traffic as a result of conduct on the part of the exporter, the state of export
shall ensure that the waste in question is taken back by the exporter within 30
days from the time the state of export was informed. It has been stated that even
though there are provisions, both in International Conventions, like Basel
Convention, and in our national laws, a holistic view needs to be taken in view of
the prevailing circumstances. The exporters of the cargo may not take the cargo
after 4 years. Besides a whole range of time consuming protocol measures may
be involved. The re-export of cargo at this point of time and under the conditions
in which the cargo was lying has been ruled out also stating that issues like
transportation charges and the ownership and acceptability of the cargo at the
destination point may be highly vexed and difficult to surmount. In this backdrop,
the possibility of disposal locally as a one-time measure was examined.

11. Further, the report recommends that the importers may be directed to pay all
the testing charges incurred by MPCB (Rs. 6.5 lakhs) and Customs (Rs. 7.5 lakhs

27 | P a g e
approximately) from the initial stage and till final disposal of goods. It also
notices that the two importers did not appear for personal hearing despite several
reminders. All the 15 importers have been divided into five different categories.

12. The attention of this Court has been drawn to the condition of the waste oil
stock lying in the Customs area pointing out that many of the drums have
exploded and the contents are spread in the area which is definitely a fire hazard
and is also causing grave damage to the environment.

Waste Oils From Petroleum Origins and Sources [(Y8) Basel Convention] to
contend that the presence of PCBs and waste oil as a secondary fuel upto 50 PPM
was fairly acceptable in respect of marketing and use. On this basis and with
reference to the test report, it was contended that since the PCB in the
consignments in question being minimal and negligible, there was no
contravention of the Basel Convention. It was contended that as per
recommendations of Commissioner of Customs re-refining was possible but the
Monitoring Committee has only recommended destruction by incineration
without any legal basis.

13. The Monitoring Committee comprises of experts in the field. It has

recommended destruction of the consignment by incineration. The PCBs may be
within permissible limit insofar as parameters of Basel Convention are concerned
but, at the same time, it has to be kept in view that parameters fixed by the Basel
Convention.

14. The liability of the importers to pay the amounts to be spent for destroying
the goods in question cannot be doubted on applicability of precautionary
principle and polluter pays principle. These principles are part of the
environmental law of India. There is constitutional mandate to protect and
improve the environment. In order to fulfill the constitutional mandate various

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legislations have been enacted with attempt to solve the problem of
environmental degradation.

15. Having regard to the aforesaid principle, the import of waste oil containing
PCBs of detectable limit has been banned in India. The fact that PCBs content in
the consignments was only marginal or minimal and under Basel Convention its
permissible limit is 50 PPM, is of no consequence. Judging by Indian conditions,
our law has provided the limit of PCBs which if of detectable limits, the import
is not allowed.

16. The afore noted precautionary principles are fully applicable to the facts and
circumstances of the case and we have no manner of doubt that the only
appropriate course to protect environments is to direct the destruction of the
consignments by incineration in terms discussed above and as recommended by
the Monitoring Committee.

17. The aforesaid 133 containers are directed to be expeditiously destroyed by

incineration as per the recommendations of the Monitoring Committee and under
its supervision subject to and in terms of this order. The cost of incineration shall
be deposited by the importers with the Monitoring Committee within four weeks.
The Monitoring Committee will ensure the timely destruction of the oil at the
incinerators mentioned in its report. After the destruction of the oil in question, a
compliance report shall be filed by the Monitoring Committee. All concerned are
directed to render full assistance and cooperation to the Monitoring Committee.

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