Last year, 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 will have the effect of exempting transit countries from obtaining prior informed consent for all shipments of hazardous waste to India. The proposal also states 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 is not banned.

This tacky attempt at redefinition attracted widespread criticism from environment and public health groups. Startled by the proposed rules environment and public health researchers and activists termed it as a gross act done at the behest of hazardous waste traders. Even the Confederation of Indian Industry (CII) has expressed its concerns in November 2007. The Supreme Court's own monitoring committee on hazardous wastes, (two members Dr Claude Alvares and D B Boralkar) also objected.

In response to the draft, the monitoring committee moved an application seeking stay on the amendments. The case had come up for hearing on 22 January this year. The court gave ten weeks to the government to file its reply but the same has not been done so far. It remains in draft form.

Disregarding the Supreme Court's ruling and the international conventions

The draft does away with the rules featuring an affirmative list of hazardous wastes, and merely lists characteristics of hazardous materials. It redefines "hazardous waste" as "hazardous material". It introduces 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 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.

Instead, the amendment proposed by the Ministry leaves room for import of hazardous waste. If it is passed, it will no longer clear as to which hazardous materials would require Prior Informed Consent, which can be freely imported, and who needs to get licenses from the Central Pollution Control Board and so forth.

Who is drafting?

The draft notification to amend the rules was signed by R K Vaish, Joint Secretary, Hazardous Substances Management Division, Ministry of Environment and Forests. The proposed rules are being promoted by the Cabinet Committee on Economic Affairs of the United Progressive Alliance (UPA) government, according to minutes of Parliamentary Consultative Committee meetings on environmental policy. The CCEA is guiding the Ministry of Environment and Forests, and the latter draws its mandate from the former.

The attempt to modify the hazardous waste management rules forms part of an ongoing process of re-engineering various provisions of the Environment Protection Act (EPA), in keeping with the recommendations made by the Govindarajan Committee on Investment Reforms.

Commerce Ministry working in tandem with Environment Ministry

In the meanwhile, also last year, 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 hazardous 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 product.

When the DGFT had proposed its registration scheme covering imports of scrap, the US Institute of Scrap Recycling Industries and the Indian scarp steel industry had objected. Ikbal Nathani of the Nathani Group of Companies, India says, “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 introduced in July 2007, 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.

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 (NEP) 2006 acknowledges how "Environmental factors are estimated as being responsible in some cases for nearly 20 percent of the burden of disease in India".

Government double-speak

The UPA government's own National Environment Policy of 2006 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 amendments to the hazardous waste rules, all of this was ignored, and the existing regime has been sought to be dismantled. Oddly enough, the 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 Ministry's own and proposed amendments to the Hazardous Materials Rules must be reviewed and revised.