This article was written by Satarupa Sarkar, a student of Amity Law School, Noida.
What are hazardous wastes and how do they harm us?
Hazardous wastes are wastes that, when present in quantities and concentrations that are high enough, pose a threat to human health or the environment if they are improperly stored, transported, treated or disposed. Hazardous substances include flammables, explosives, heavy metals such as lead, arsenic and mercury, nuclear and petroleum fuel by- products, dangerous micro organisms, and scores of synthetic chemical compounds like DDT and dioxins.
Section 2e of the Environment (Protection) Act,1986 defines hazardous substance as any substance or preparation which by reason of its chemical or physio chemical properties or handling, is liable to cause harm to human beings, other living creatures, plants micro-organisms property or the environment.
According to Green Peace, between 1986 and 1988, more than three million tonnes of wastes were shipped from industrialised to developing countries because richer and more aware nations become alarmed by hazards of toxic wastes and the cost of their disposal. Thus, developing countries become the most convenient dustbin.
Exposure to toxic substances may cause acute or chronic health effects. Acute effects show up soon after high level exposure and has various ranges of severity from rashes to death.
Chronic effects result from low level exposure and generally include birth defects, miscarriages, damage to lungs, nervous systems and etc.
Basel Convention on transboundary movement of hazardous wastes and their disposal, 1989
The Basel Convention on Control of Hazardous Wastes was held at Basel ( Switzerland) on 22nd March,1989. In 1987, the United Nations Environment Program (UNEP) was founded.
The convention had the active participation of UNEP and developed countries which included the USA.
The aim was to make “ environmentally sound management a pre requisite to any transboundary movement of wastes. In this convention at least half of the members were from developing countries.
The Basel convention does not ban and on the contrary permits the hazardous wastes to be exported to developing countries if the parties comply with the conditions and restrictions of the Convention. It requires the parties to take all practical steps to ensure trans-boundary movement of hazardous wastes is conducted in such a manner which will protect human health and the environment against the adverse effects which may result from such movement.
The Basel Convention is a model set of regulations for the sound management of the transboundary movement of hazardous wastes and substances. The convention requires each signatory to implement domestic legislation according to the regulations set by the convention . One of the most important decisions of the Basel Convention is the one establishing the immediate prohibition of export of all transboundary transfers of hazardous wastes which are destined for final disposal from OECD to non-OECD States. Further, the transboundary transfer of hazardous wastes for recycling or recovery operations from OECD to non-OECD states to be phased out by 31 December, 1997.
LEGAL CONTROL OF HAZARDOUS WASTE IN INDIA
In India, after the Bhopal Gas Tragedy in 1984, the Government went on to review the practices of waste management and disposal of hazardous substances, thereafter the government enacted the Environment(Protection) Act, 1986. Section 3 of the Environment (Protection) Act gives power to the Central Government to take measures to protect and improve the environment. Section 3(ii) specifically empowers the Central Government to take all such measures as it deems necessary for the purpose of laying down procedure and safeguards for handling hazardous substances.
The Central Government by exercising the powers conferred by sections 6,8 and 25 of the Environment(Protection) Act, 1986, introduced the Hazardous Wastes Management Rules, 1989 to regulate wastes.
Specific provisions have been made under these rules for handling of hazardous substances. Before permitting the handling of hazardous substances in an area, the Central Government has to take into consideration the hazardous nature of the substance and its potential to damage the environment, human beings, etc.
Further, the government has to apply its mind to the availability of a substitute or of the state of technology for developing a safe substitute. Thus, the government is required to consider all relevant matters before taking decisions on prohibition and restriction on the handling of hazardous substances.
On 24th September, 2008 the Hazardous Wastes Management (Handling) Rules, 1989 were superseded by the Hazardous Waste (Management, Handling and Transboundary Movement) rules. An amendment to this new rule has been done in 2009.
Besides the rules issued under the Environment Act, 1986, provisions touching on the regulation of hazardous substances are contained in the Explosive Substances Act, 1908, Indian Petroleum Act, 1934, Inflammable substances Act, 1952, Factories Act, 1948, Insecticides Act,1968 and rules of 1971, Atomic energy Act, 1962 etc. The recently promulgated National Environment Tribunal Act, 1995, provides for strict liability for damages arising out of any accident occurring while handling hazardous substance. Likewise, the Public Liability Insurance Act,1991, deals with the compensation for the victims of industries engaged in manufacturing hazardous substances.
HAZARDOUS WASTE (MANAGEMENT AND HANDLING) RULES, 1989
These rules are framed under the enabling provisions of the Environment Act,1986(sections 6, 8, 25). They apply to designated categories of wastes (as specified in the Schedule, e.g cyanide wastes, wastes from dyes) and excludes radioactive wastes covered under the Atomic Energy Act,1962 ; wastes discharged from ships under the Merchant Shipping Act,1958 and ; waste water and exhaust gases regulated under the Water Act and Air Act.
A few of the most important rules are rules 2,4 and 5 .
Under Rule 2, it is specifically provided that these rules apply to the handling of hazardous waste as specified in the schedule. But do not apply to the following:
Waste arising out of the operation of ships beyond 5 km of the relevant baseline, as covered under the Merchant Shipping Act, 1958
Waste water and exhaust gases covered under the Water Act or Air Act
Radioactive wastes covered under the Atomic Energy Act, 1962
Biomedical wastes covered under the Biomedical Wastes ( management and handling) Rules, 1998
Wastes covered under the Municipal Solid Waste (management and handling) Rules,2000
Under Rule 4, a person generating hazardous wastes in quantities exceeding specified limits is required to take all steps for proper handling and disposal of such wastes.
Rule 5 prescribes the permit system administered by the State Pollution Control Board for the handling and disposal of hazardous wastes. No person without the Board’s authorization may collect, receive, treat, transport, store or disposal of hazardous wastes .No person without the board’s authorization may collect receive, treat, transport, store or dispose off hazardous wastes.
Rule 7 requires the packaging labelling and transport of hazardous wastes.
Rule 8 requires state governments to an inventory of disposal sites.
Rule 11 prohibits import of hazardous wastes into India for dumping and disposal.
Until January 2000 the import of hazardous wastes in India for recycling was not prohibited under the Rules and a large quantity of waste moved into India due to this loophole in 1997.
On May 1997 the Supreme Court banned the import as a measure in a writ petition filed by the Research Foundation for Science, Technology and Natural Resource policy.
On October 1997, the court, constituted a committee to examine in depth all matters relating to hazardous waste and give their report and recommendations.
In January 2000, the Centre introduced comprehensive amendments to the Hazardous Wastes Rules of 1989. The amendments extend the application of the Rules to hitherto unregulated processes and wastes (zinc and lead wastes), strengthen the existing permit system and introduce a new set of regulations to restrict the import and export of hazardous wastes for recycling and reuse. The union Ministry of environment and forests is designated as the nodal agency to permit the transboundary movement of hazardous wastes.
HAZARDOUS CHEMICALS (Manufacture, Storage and Import) Rules, 1989
These rules framed by the Central Department of Environment, Forests and Wildlife, apply to industries that use or store specified hazardous chemicals. These rules have been framed with a view to fix responsibilities as to the manner of handing, taking adequate preventive measures in manufacturing, storage and transportation, import of hazardous chemicals.
Under the Rules, the Central and State Pollution Control Boards are required to enforce governmental directives and procedures, and the district collector or other designated authority is required to prepare “ off site emergency plans” to contain major chemical accidents(Rule 3).
The responsibility of preparing and upgrading “ on site emergency plans” rests with the ‘occupier’ who controls the industrial activity. The occupier is also required to submit periodical up-to=date safety reports to the authorities (Rule 4). Control on import of hazardous chemicals is maintained by imposing conditions of disclosing the details of chemicals and of taking suitable steps for safe handling while they are off-loaded (Rule 18)
In 1996, the Chemical Accidents (Emergency Planning, Preparedness and Response) Rules were issued to strengthenthe administrative response to hazardous substance accidents. These Rules supplement the Hazardous Chemical Rules of 1989. The Rules require the Centre and the States to constitute “crisis groups” at the national, State, district and local levels to deal with chemical accidents.
In January 2000, the Central Government amended the Hazardous Chemical Rules, 1989. The amendment redefined ‘major accident’, introduced fresh parameters to identify toxic chemicals, flammable chemicals and explosives and altered the Schedules, including the insertion of a revised list of hazardous chemicals in Schedule I. it also
Provided for the mandatory Safety Audit in major accident hazard units.
HAZARDOUS MICRO-ORGANISMS RULES,1989
These Rules came into force in October 1993. They regulate the manufacture, use, import, export and storage of hazardous micro-organisms and genetically engineered cells/organisms. The Rules were framed not only under sections 6 and 25 of the Environment Act, 1986, but also under section 8, which regulates handling of hazardous substances. The regulation is made through a system of supervision, examination and control by different committees.
The handling, manufacture and use of micro-organisms is prohibited except with the approval of the Genetic Engineering Approval Committee (Rule 7).
Bio-Medical Waste (Management and Handling) Rules,1998
The rules apply to all persons who generate, collect, receive, store, transport, treat, dispose or handle bio-medical wastes in any form. The rules envisage the segregation, packing and disposal of ten categories of bio-medical waste which are listed in Schedule to the Rules.
The rule mandates that it shall be the duty of every occupier of an institution generating bio-medical waste which includes a hospital, nursing home, clinic, dispensary, veterinary institution, animal house, pathological laboratory, blood bank, to take all steps to such waste is handled without any adverse effect to human health and the environment. It is provided that no untreated bio medical waste shall be kept stored beyond a period of 48 hours.
All the rules discussed above appear to constitute a “comprehensive code” for the regulation of hazardous substances and cover both the preventive and post-accident measures to be taken.
However, it can be said that, there are several rules to regulate hazardous substances, but there is no effective implementation. Also, the country lacks the basic knowledge or information about the nature and characteristics of hazardous substances and their effects on human health and environment. Therefore more awareness needs to be spread about the nature of hazardous wastes for the proper implementation and enforcement of the Hazardous waste rules.