2.2.4.

2 Hazardous Waste (Management & Handling) Rules, 1989

The Hazardous Wastes (Management and Handling) Rules, 1989, provide for an effective inventory and
controlled handling and disposal of hazardous wastes. Under the rules 18, categories of hazardous waste are
identified along with their regulatory quantity Industries generating any of these waste beyond the
regulatory quantity are required to seek authorization from the concerned State Pollution Control Board for
its temporary storage in the premises and their disposal. Possibility, of common treatment facilities including
landfill are envisaged. The operator of such facility is also required to obtain authorization from the Board.
The Boards are expected to specify conditions on safe handling and disposal of the waste in the
authorization. Treatment of the waste at the premises before disposal could also be specified. Import of
hazardous waste for processing has to be got approved by the Central Government.

2.2.4.3 Manufacture, Storage & Import of Hazardous Chemical Rules 1989

The principal objective of the regulation is the prevention of major accidents arising from industrial activity,
the limitation of the effects of such accidents both on humans and the environment and the harmonization
of the various control measures and the agencies to prevent and limit major accidents. The industrial
activities covered by the regulation are defined in terms of process and storage methods involving specified
hazardous chemicals.
An important feature of the regulation is that the storage of hazardous chemicals not associated with the
process is treated differently from those coming under process use for which a different list of hazardous
chemicals and their manufacture and storage procedures applies. Under the provisions isolated storage /
cover sites are to be separate tank farms or warehouses. The Central Pollution Control Board and the State
Pollution Control Board. as the case may be, are the enforcement agency for these storages

2.2.4.4 Safety Report

A safety report is required to be prepared as per Rule 10 in this Act. It involves identification of the nature
and use of hazardous chemicals at the installation. The report will also give account of arrangements for
safe operation of an installation including control of any serious deviation that could lead to a major accident
and for emergency preparedness at the site. The report will identify the type, and the relative likelihood of
consequences for any major accident that might occur. It will also demonstrate that the manufacturer or the
occupier has identified the major potential accidents from the activity and has provided appropriate controls.

2.2.5 The Public Liability Insurance Act, 1991

This is an Act to provide for Liability Insurance for the purpose of providing immediate relief to the persons
affected by accidents occurring while handling hazardous substances. The Act casts on the person, who has
control over handling any hazardous substance, the liability to give the reliefs specified in the Act to all the
victims of any accident which occurs while handling such substance. It would be the duty of every owner to
take necessary insurance policies to discharge his liabilities.

Pollution due to biomedical waste

  Pollution due to biomedical waste is likely to spread disease dangerous to life and making atmosphere
noxious to health. In early April, 2010 a machine from Delhi University containing cobalt-60, a radioactive
metal used for radiotherapy in hospitals, ended up in a scrap yard in the city. The death from radiation
poisoning of a scrap yard worker in Delhi has highlighted the lax enforcement of waste disposal laws in
India. The International Atomic Energy Agency said it was the worst radiation incident worldwide in four
years. 
  India being used as a dumping ground for hazardous waste, from foreign countries. Twenty containers
with goods were detained by the officials of Special Intelligence and Investigation Branch attached to the
Customs Department here recently. Packs of broken toys, used diapers, empty perfume bottles, used
battery cells, thermocol, used aluminum foil packing materials and coloured surgical gloves were found in
the containers. It could also lead to contamination and spread of communicable diseases. 
BIOMEDICAL WASTE MANAGEMENT W THE PROCESS OF
ENVIRONMENTAL GOVERNANCE
by admin — last modified 2007-11-16 13:38

Dr Raghunath Patnaik* P.G. Department of Law, Utkal University, Vani Vihar, Bhubaneswar-

751004

The health status of an individual, a community or a nation is determined by Interplay and

integration of two ecological factor i.e. the internal environment .of man himself and the
external environment of man which surrounds him. Disease spreads due to the disturbance
in the delicate balance between man and his environment. The science of safeguarding
health is known to people as’ Sanitation’ and it covers the whole field of controlling the
environment with a view to prevent disease and promote health.
 
The problem of environmental pollution started with the advent of men on earth and now
has become extremely acute both in developed and developing places. Due to loss of self-
cleaning capacity of the air, developed countries have laid down stringent safety standards
and measures to maintain the power of the balance of the nature in the area of waste
management, particularly in the area of bio-medical waste management. But the developing
countries have either delayed or ignored such pollution problems, which are more harmful,
determinental or injurious to the public health, safety and welfare of the public. Paul
Harrison in his book ‘The  Third World Tomorrow, at [pp. 38-40 has warned that there
would no tomorrow for the third world countries if such pollution problems continue to
remain in the society for no-adoption of anti pollution strategies. Therefore it can be
emphasized that Eco-development is one of the sensible precondition of sustainable
development and for that matter immediate measures are required to be taken to snatch
the terrible implication of nature resulting from non-scientific disposal of bio-medical
wastes.
 
LEGAL SANCTIONS FOR BIO-MEDICAL WASTE MANAGEMENT:
 
In the past, there were different provisions under various laws to meet the environmental
issues, but they were somehow  remain to be ineffective for all practical purposes. The
following table provides the comparison of laws enacted in different countries for control of
environmental issues pertaining to bio-medical wastes:  
 
Country                 Nature of pollution related legislation on was; management 
including bio-medical waste management
United Kingdom     The Public Health Act, 1936
 The Birth Police (Scotland) Act. 1892 and 1903
The Refuge Disposal (Amenity) Act, 1978       
The Litter Act, 1958 The Dangerous Litter Act. 1971
The Deposit of Poisonous Waste Act, 1972
The Health and Safety at Work, etc. Act, 1974   
The Water Act. 1973 The Control of Pollution Act. 1974
The Solid Waste Disposal Act. 1955
The Resource Conservation and Recovery Act, 1976
The Person s Act, 1919 The Drugs and Cosmetics Act, 1940
The Prevention of Food Adulteration Act. 1954*
The Industries (Development and Regulation) Act, 1951
The Insecticides Act, 1968* The Destructive Insects and Pests  Act
1914
 
In India the devices and rules for protecting environment are discernible even from the
ancient times. The rules for the city administration pronounced by Chanakva during the
4th Century B.C. testify that the rulers, then, were keen on maintaining hygiene and
cleanliness as they believed that ‘Cleanliness is Godliness’ (see R.P. Kangle; the ‘Kautilya
Arthasastra’, second Edition, Part-1, page 94). The sections 26 to 30 of the said
Arthasastra provided for penalties against the citizens for making the city dirty and are
given below:
 
Provision of Law                                                  Prescription of Law
 
Section – 26                           For throwing dirt on the road, the fine shall be one-eighth
of  a pana and for locking the same with muddy water the fine
shall be one-quarter of a pana.
 
Section -27                             For the same cause, on the royal highway, such 
fine shall be double
 
Section-28                             For voiding faeces in a holy place as for water, in a temple
and in a royal property, the fine shall be one pana and rises
successively by one pana for subsequent offences for passing
urine, the punishment is half of above,
 
Section-29                    It is an exceptional provision and exempts punishment on the
people if such 
 pollution  was due to impact of medicine or due to illness of the
persons.
 
Section-30                    For throwing dead bodies of animals like cat, dog or serpent
inside the city, the fine imposed is 3 panas, and for other
animals like donkey, camel, mule, horse or a cattle, the fine
imposed was 6 panas and for human dad bodies the fine
imposed was 50 panas.
 
After independence, there is also constitutional sympathy for environmental preservation.
As per Constitution Amendment Act. !976,  it has become obligatory duty on the pan of
state and every citizen to protect and improve the environment.
 
Article 47 of the Directive Principles of tile Stale Policy lays down that the improvement of
the public health is one of the primary duties of the State. Similarly Article   48A envisages
that. The state shall  endeavour to protect and improve the environment. Article 51 -A (g)
made it a fundamental duty on every citizen of India who shall have to protect and improve
the natural environment. Even the Indian constitution made it clear that environmental laws
have certain humanities from Judicial scrutiny. As per Article 31-C, any law which gives
effect to the policy of the  state towards securing objectives of environmental issues which
includes Bio-Medical Waste Management, shall not be treated as void or inconsistent, if it
abridges or takes away any of the fundamental rights conferred by Article 14 or 19. nor any
such law shall be called in question  any court on the ground that it does not give effect to
that policy. The Parliament and the State Legislature has been conferred with exclusive
power to make laws with respect to any of the matters enumerated in List-I (Union List) and
List -II (State List) and the List-Ill (Concurrent List) of the VIl Schedule items which includes
environmental issues. For example List-11 of the State List, Entrv-6 deals with Public
Health  and Sanitation, Entry-18 deals with Land and right in and over the land and under
List-III (Concurrent List) Entry-20 the State has the power to enact on economic and social
planning which includes Bio-Medicaid Waste Management regulations.
 
The Hospitals and other health-care institutions dump their wastes, containing human
tissues, blood soaked items, excreta, drugs, swabs, disposable syringes and needles,
bandages, etc., in the municipal garbage dumps. These dumping sites are regularly visited
by the ‘Rag-pickers’ who scan and sort out the plastics, disposable syringes, etc., so that
thy can be resold at various places for re-cycling. The problems of the waste disposal in the
hospitals and other health-care institutions have become issues of increasing concern.
 
Under the Indian Penal Code 1860, apolluter of environment can also be punished if he does
any act which causes any common injury; danger or annoyance to the public or to the
people in general then the act may be treated as public nuisance as defined under Section
268 and the offender may be punished under Section 290or 291 of the code. Similarly if a
person unlawfully or negligently does any work which is or which he knows or has reason to
believe to be likely to spread infection of any disease dangerous to life, may be punished
under Section 269 of the Indian Penal Code. There are also penal provisions under a
situation which either causes or destroys or diminishes the value or utility or any property
injurious as provided under Sections 426, 430, 431 and 432 of the Indian Penal Code. This
otherwise means that if any person who generates, collects, receives, stores, transports,
treats disposes or handles bio-medical wastes in any form shall be treated as the
contravenor of the above penal provisions.
 
Almost all types of pollution can be controlled or removed by the District and Sub Divisional
Magistrates or by Magistrates specially empowered for the purpose, by exercising powers
under Section 133 (for issuance of a conditional injunction order against a particular person,
under Section 143 (for issuance of an absolute order against general public nor to repeat or
continue a public nuisance) and under Section 144 (for issuance of an order in urgent cases
of nuisance or apprehended danger) or the Criminal Procedure Code, 1973.
 
The Police Act 1861 prevents and control the slaughtering of animals, cleaning of carcass,
throwing dirt into streets and also prescribes punishments for the offenders.
 
The Municipal Acts also provides for regulating and controlling disposal of domestic and
trade effluents.
 
It can therefore be stated that social regulation can be achieved through the establishment
of norms of conduct and the creation of required machinery along with accompanying
empowerment on the authority. Law serves as one of die key instruments of such social
regulation. Therefore it is essential for developing a legal frame work on the management of
Biomedical Waste and implementation of the same thought an effective medium for
sustainable development. This needs an integrative character highlighting consensus
planning, policy and procedure which are not considered inimical to the social norms.
Therefore a judicious balance between environment protection and bio-medical waste
management is the need of the hour.
 
Environment in the modern context sustainable development encompasses the physical and
social factors of the surroundings of human being and includes land, water, atmosphere,
climate, sound, order, taste and some biological factors such as animals, plants etc., All
these factors play a key role in the formulation of regulations for effective management
under bio-medical waste management. Therefore the management practice msut aim to
monitor land-use planning and zoning for which it is necessary to analyse the integrative
character of Bio-Medical Wastes generated in the locality. The law on Bio-Medical Waste
(Management and /handling) Rules, 1998 is a laudable step in this regard. But there are
certain implementative/treatment facility instead of decentralizing the scheme over the
units, despite the fact that the occupier/operator has the means of potential to handle the
same.
 
Under the circumstances, ti become imperative to approach the subject holistically
particularly in the land use planning and zoning, licensing and standard setting besides used
for prescribing specific punitive sanctions so that deterrence is achieved to the optimum. It
may be stated that the rational behind such planned land use and zoning is simply for the
reason that [1] there is limited land resources and [2] there is grater impossibility of pre-
empting the negative side effects in the Bio-Medical Waste management. Therefore the
envisaged law must aim to prohibit or impose restriction against undesirable land use for
dumping the medical wastes.
 
Even before taking steps for licensing the institutions for managing the Bio-Medical Wastes,
it is necessary that an EIA, as per Principle-I of UNEP goals should be conducted so that
people are aware about the environmental effects on such dumping of bio-medical wastes.
 
In the proposed Law, under Rule-4, it should be read as ‘DUTY OF OCCUPIER’ Instead of
‘DUTY OCCUPIER’. Rule-6 is categorical about the identification of type of bio-medical
wastes and the manner in which they have to be packed and disposed, as such the very
handling of such wastes requires constant monitoring by a specific agency; the
environmental management authorities in the States are either handicapped or are not
equipped with man-power potential discharge the function. Since the matter falls within the
ambit and scope of local Authorities viz: Municipalities, the task of monitoring should be
entrusted to the subject of course to the satisfaction of environment standard maintenance.
 
Towards the licensing and standard setting, the propsed law should aim to emphasise on
quality of air and water that are likely to be affected before issuance of such license. Also
there should be authorization to the empowered officers to de-license the polluting the level
of pollution for which it is necessary to have a strong enforcement mechanism within the
frame-work of law.
 
Incidentally, in 1989 the Government of India, In exercise of powers conferred under
sections 6,8 and 25 of the Environmental Protection Act, 1986 formulated the
Hazardous  Waste(Management & Handling) Rules, 1989 which were amended in 2000. But
these rules did not cover hospital wastes, despite of the fact that India was a party to Basel
Convention on Medical Waste Management and therefore is bound to implement the same.
In consonance with the same a draft notification on Bio-Medical Wastes (Management and
Hanlding) Rules, 1995 was issued on 24th April, 1995 vide S.O. 378(E) II 3(ii) Gazette of
India Extra., Sl.No. 19 and objections were invited from public. After duly considering
necessary amendment in the Draft Rules, the Bio-Medical Waste (Management & Handling)
Rules 1998 finally came into operation with effect from 20th July, 1998 vide S.O. 630 (E) II
3(ii), Gazette of India, Extra, Sl.No. 460. These Rules are applicable to all persons who
generate, collect, receive, store, transplant, dispose or handle bio-medical waste in any
form.
 
The Bio-Medical (Management and Hanlding0 Rules enumerate the Institutions generating
bio-medical wastes including hospital, nursing homes, clinics, dispensaries, veterinary
institutions, animal houses, pathological laboratiories and blood banks. This also specifically
mention the duty of occupier, categories of bio-medical wastes and various standards for
treatment and disposal of biomedical wastes.
 
JUDICIAL RESPONSE:
 
Tile issue of 'Improper Hospital Waste Management' in India was first 10 highlighted in a
writ  application in B.L. Wadhera v. Union of India, AIR !996 SC 2969. The apex court while
keeping in view the appalling conditions arising due to le bio-medical waste disposal
provided certain guide line:
 
(a)      All hospitals with 50 bed and above should install incinerators or any other 
effective alternate method under their own administrative control.
(b)      The incinerator or alternative methods should be fitted with necessary 
pollution control mechanism, approved and confirming to the standards laid down by
the Central Pollution Control Board.
(c)      The Central Pollution Control Board and the State Pollution Control Boards 
should regularly send its inspection teams in different areas to ascertain that the
collection transportation and disposal of garbage/ wastes is carried out satisfactorily.
 
CONCLUSION :
 
The solution of environmental pollution on bio-medical waste management solicits
concentrated multi-disciplinary endeavours. Therefore proper environmental health requires
the co-operation and service of public health and medical professionalism apart from
educating people about the menace.
 
BIO-MEDICAL WASTES A PROBLEM OF ENVIRONMENT POLLUTION
by admin — last modified 2007-11-16 13:40

Rattan Singh*

Right to live in clean environment is one of such Fundamental Rights, which has been
developed through bold and innovative interpretations of article 21 of the Constitution The
article provides that no person shall be deprived of his and personal liberty. Life and
personal liberty means dignify survival i.e. survival in pollution free environment. Article 48-
A is one of the Directive Principle of state policy, which says that state shall endeavor to
protect and improve the environment and to safeguard the forests and wildlife of the
country. ArticIe51-A sets out the fundamental duties of the citizens. It provide to protect
and improve the natural environmental including forest' lakes, rivers and wild life and to
have compassion for living, creature. Not only the constitution but state government can
also entrust power on the self governing institution in village and cities to maintain and
protect the Environment. Not only the constitution but various other statues like The Water
Act, The Air Act, The Environment Protection Act, Hazardous Waste (Management and
Handling) Rules 1989, forests Act, The Wild life Acts and Provision of Indian Penal Code,
Criminal Procedure Code and Factories Act etc are meant for providing pollution free
environment to mankind. There are other rules like                          hazardous waste rules,
bio-medical waste rules etc. which contribute in the protection and maintenance of
environment balance.

 
There are many institutions which pollute the environment but recently the ignored field
which produce the pollution by way of Bio-Medical wastes and attracts the attention of the
environmentalists are the Hospitals, Dispensaries, Medical Shops, Medical clinics of doctors
and other paramedical staff. Bio-Medical waste means.
 
"any waste which is generated during the diagnosis treatment or immunization of
human beings or animals or in research activities or testing of biological, and
including categories pertaining thereto or in the production mentioned in
Scheduled 1"
Bio-medical waste is not only hazardous and pollute the environment but dangerous for
human beings, animals and plants by other ways also. Every day, the country's numerous
hospitals and other medical institutions churn out millions of tones of waste. An alarming
percentage of the waste lies on open space creating environmental problems. Bio-medical
waste [pathogenic organisms] are hazardous in nature. These damage the environment,
even at low concentration. Hence it is necessary to take precautionary measures, so that
hazardous components in the waste are rendered harmless through proper treatment by
technology and safe disposal methods.
 
The problem of bio-medical waste has acquired gargantuan proportion in today's cities.
About one and half Kg of waste is produced per heady/per day of the total hospital waste,
which is contaminated with disease carry pathogens. If we take a example of a patient
laying in the hospital for treatment and a normal man living in the society. A patient in the
hospital needs more and more hygienic and pollution free environment. He needs oxygen.
But the environment of Hospitals, especially of govt. hospitals is so polluted by the medical
wastes that it becomes very difficult even for a normal man to go in the hospitals and give
a visit to his concerned patient.
 
Recycling of hospital waste is a big threat to the society. Workers in the hospitals regularly
collect syringes, drips and bottles which they sell in the market. They also sell used
and contaminated cotton and cotton like material to  make the mattress etc.
 
To tackle this problem of medical waste Ministry of Environmental   and Forests drafted Bio-
medical waste [Management and Handling] Rules 1995, regarding the disposal of bio-
medical wastes. Rules provide the different categories of bio-medical waste, which include: 
(1) Human anatomical wastes [human tissues, organs, body parts] 
(2) Animal Wastes (animal tissues, organs, body parts, car-casses, bleeding parts, fluid,
blood and experimental animal used in research, waste generated by veterinary hospitals,
colleges, discharge from hospitals, houses.)
(3) Microbiology and Biotechnology wastes (waste from laboratory culture, stocks or
specimens of micro-organ-isms live or attenuated vaccines, human and animals cell culture
used in research and infectious agents from re-search and industrial laboratories, wastes
from production of biological, toxins, dishes and devices used for transfer of culture)
(4) Waste Sharps (needles, syringes, scalpels, blades, glass etc., that may cause puncture
and cuts. This includes both used and unused sharps)
(5) Disordered Medicines and Cytotoxic drugs (waste comprising of outdated,
contaminated and discarded medicine) 
(6) Soiled Waste (items contaminated with blood and body fluids including cotton,
dressings, soiled plaster casts, linens, bedding, other material contaminated with blood) 
(7) Solid Waste (waste generated from disposable items other than the waste sharps such
as tubing catheters, intravenous sets etc.) 
(8) Liquid wastes (waste generated from laboratory and washing, cleaning, house keeping
and disinfecting activities). 
(9) Incineration Ash (ash from incineration of any biomedical waste) (10) Chemical Waste
(Chemical used in production of biological, chemicals used in disinfecting as insecticides,
etc.)
 
In March 1996, the Supreme Court had ordered all hospital to install incinerators or
alternatives technologies to disinfect medical wastes. In implementing the orders, hospitals
used the single technology of incineration for all hospitals wastes which release dangerous
substances such as dioxins and furans, which are carcinogenic.
 
The new rules focus on and engineering issues, appropriate to the requirement of waste.
They call for a simplified "four-colour scheme" for segregation of waste and specification of
how much kind of waste should be dealt with. These four colours are: Yellow colour : This
category comprises infections waste such as human tissues,  organs and body parts, animal
tissues, carcasses, bleeding parts, fluid, experimental animal used in research, waste
generated by veterinary hospitals,  colleges, discharge from hospitals, animal houses. All
other waste'-contained in category 3 and 6 (mentioned above).
Red Colour: It comprises items contaminated with blood such, as bandages and cotton etc.
which are mentioned in category 3, 6 & 7 above.
 
Blue Colour: It consists of plastic and glassware including syringes, tubing and bottles etc.
Which are mentioned in category 4 and 7 above.

Black Colour: Items in category 5, 9 and 10 above.

 
The items in yellow colour is to be disposed off through incineration and deep burial, in red
colour by autoclaving and microvaving and chemical treatment in blue colour by
autoclaving/Microwaving//chemical treament and destruction/shredding and black by
disposal in secured landfill.
 
So, various items like Blood, Urine, sperms, stool, used cotton, disordered medicine,
chemicals, body organs like placenta, empty bottles, polythene bags of urine and blood,
pipes, syringes, waste of fruits etc., contribute in the pollution of environment. The general
analysis regarding the disposal of bio-medical waste by medical staff is not good. They
dispose the medical waste by:

1.       throwing it in the sewerage

2.       throwing in a small trench, in case of body organs 
3.       burning, in very few cases
4.       throwing on own or municipal corporation land, marked for the purpose
5.       Incineration (once or twice in six months in one government hospital)

6.       do not dispose, only dogs, cats and pigs carry all the wastes
 
About the use of incinerators, authorities always show their inability due to the costly
process, lack of training, that all the private hospitals can not afford incinerators etc. It is
true that no training is given to the operating staff about the disposal of bio-medical waste
with the help of incinerator. Some time incinerator does not give required temperature to
burn the waste.
It is observed that the use of incinerator to dispose the medical waste is compulsory, but it
is in the access of very few govt. hospitals due to its cost. In these days the trend of
general public is to prefer private hospital than the govt. So problem regarding the disposal
of bio-medical waste is more of private hospitals than govt. hospitals but they do no have
access to incinerator installed by the govt. Even through rules to prevent bio-medical waste
are passed but govt. gave a specific time to the hospitals mentioned in Category B(c) (d)
and C below, to generate Pollution6 which can be observed from the following:
A Hospitals and nursing homes in towns with by 31st December,
population of 30 lakhs and above 1999 or earlier
 
B hospitals and nursing homes in towns with population of below
30 lakhs
  (a) with 500 beds and above by 31st December,
  1999 or earlier 

(b) with 200 beds and above but less than by 31st December. 2000

500 beds or earlier

 by 31st December,
(c) with 50 beds and above but less than 200
2001 or earlier
beds.
by 3 1st December. 2002
(d) uith less than 50 beds
or earlier
 
C All other institutions generating bio- by 31st December,
medicalwaste not included in A and B. above 2002 or earlier
 
Suggestions:
 
(1)      For the use of incinerator Training should be given to some number of persons from
staff.
(2)      Specific fund should be allocated for the use of incinerator.
(3)     Every hospital should have special boxes to use as dustbin for bio-
medical waste.
(4)     Bio-medical waste should not be mixed with other waste of 
Municipal Corporation.
(5)     Private hospitals should also be allowed to use incinerator., which 
is installed, in govt. hospital. For this purpose a specific fee can be charged from
private hospitals.
(6)      Special vehicle i.e. bio-medical waste vehicle should be started to collect waste from
private hospitals and private medical clinics and carry it up to the main incinerator.
(7)      As provided by bio-medical waste rules, the whole of the waste 
          should be fragmented into colours due to their hazardous nature.
(8)      Bio-medical waste Management Board can be established in each 
          District.
(9)      Either Judicial powers should  be given to the management board 
           or special court should be established in the matters of environment 
          pollution for imposing fines and awarding damages etc.
 
Along with fear and sanction, awareness about side effect of bio-medical waste must be
given t general public, medico and legal luminaries, social workers and societies doing work
for mankind.
 
Notes:
* Lecturer, Department of Law, G.N.D.U., Amritsar
1. 51-A(g) Part IVA of the constitution of India
2. Article 243 G and 243 W of the constitution also are schedule 11 
     and 12 of the constitution.
3. Rule 3(5) of Bio-Medical waste (Management  and Handling Rules, 
    1998.
4. Scheduled 1 of Bio-Medical waste (Management and Handing Rules, 
    1998.
5. Scheduled II of Ibid….
6. Scheduled VI of ibed….
 
HAZARDOUS WASTE: A LEGAL PERSPECTIVE
by admin — last modified 2007-11-13 16:12

SANJAY PARIKH[1]
NOTES AND COMMENTS

We have become conscious of the fact of dumping of hazardous waste in our country not
long back. Though the Basel Convention[2] was in existence, having been ratified by India,
not many people (including environmentalists) were aware of it, its implications and
obligations flowing from it. And there were no protests against the continuing acts of the
industrialised nations dumping their wastes (more than 90 of the total waste in the world)
due to stricter environmental laws in their countries, higher cost at recycling, people's
opposition and the difficulty faced in locating final disposal sites. Indiawas therefore
discovered as a convenient place for dumping, with no resistance either from the authorities
or from the people. The implementing authorities (Central Pollution Control Board and State
Pollution Control Boards)[3] were totally ignorant about the menace of dumping of
hazardous waste. It is a shocking fact that none of the industries re-cycling hazardous
waste had any facility for safe disposal of such waste in an environmentally sound manner.
The practice which was followed, in callous disregard (o the law and environment, was to
dump the hazardous waste in the manner the industries chose. There was no control
whatsoever. To what extent the Pollution Control Boards have now succeeded in controlling
it is a detailed chapter; its history begins with initiation of a Public Interest Litigation (PIL)
[4] in the Supreme of India. Whatever criticism * may be made of the PIL, accusing
judiciary of exceeding its limits, but it is true, and has been admitted by even the
Government that it is this

PIL which made them aware about the magnitude of the problem and that it may take a
serious turn if not checked immediately. The, concern of this paper is not to discuss or
comment on the litigation which is pending before the Supreme Court but to indicate some
of the relevant aspects as they emanate only through the said litigation.

The Basel Convention which was signed by India on 22 September

1992 sought to regulate the "garbage imperialism" or "toxic terrorism", as it was called,
indulged in by the Organisation for the Economic

Cooperation and Development (OECD) countries towards Non-OECD

Countries. The Basel Convention envisaged that in the beginning of year 1998, there will be
complete ban on exports of hazardous waste but it could not materialise for obvious
reasons. Besides so many important clauses in the Basel Convention, the most important
one is that the country which is importing hazardous waste should have facilities to dispose
of the waste in an environmentally sound manner.

If any industry does not possess this facility, it has no right to continue its operation. The
Basel Convention has to finally come out with the lists of banned wastes, where no import
or export would be permitted and also the list where the transactions would be strictly
regulated.

Let me point out at this juncture only that the Indian Courts, Supreme Court and the High
Courts, have given new dimensions to the chapter on fundamental rights in the
Constitution, in particular to Article 21, in favour of the people and the environment. Article
21 of our Constitution says that no person's life can be taken away without procedure
established by law. The word "life" was extended to "livelihood" in the Pavement Dweller's
case[5], and thereafter it was extended to rights ot prisoners, right to environment free of
pollution, right to safe drinking water, right to shelter, right to privacy, right to health etc.
The expansion of Article 21 enthused the public interest groups approaching the High Courts
and the Supreme Court to seek enforcement of right to have clean and safe environment
against the polluting industries, against irreversible damage to the environment and
inaction/non-action of the Government. This development has taken place within a decade,
in particular, the last few years have shown the courts’ activism at its peak concerning
environment. The Supreme Court has made obligations of the State to provide safe and
clean environment under the Directive Principles also enforceable.
The laws which were initially enacted by the parliament, included the Water (Prevention and
Control of Pollution) Act 1974 and the Air (Prevention  and Control of  Pollution) Act, 1981.
Under these two Acts, rules were framed. Pollution Control Boards were constituted and
powers were given to enforce the provisions of these two Acts. On 23
May  1986 the  Environment (Protection) Act, 1986 was brought into force to provide for
protection and improvement of environment and for matters connected  there with. The Act
was brought in view of the commitments made by India at the UN Conference on the
Human Environment held at Stockholm in June 1972.This Act seeks to protect and improve
not only the environment but to prevent hazards to human beings, other living creatures,
plants and property. It is under this Act that the Hazardous Wastes (Management and
Handling) Rules, 1989 have been trained by notification dated, 28 July 1989. There are only
11 provisions w these Rules out of which Rule 5 is about the grant of authorisation for
handling hazardous wastes and Rule 11 about the import of hazardous wastes, among
others, are relevant. Under Rule 5 authorisation can be granted to an industry which is
collecting, receiving, transporting, storing and disposing of the wastes, if these units have
facilities to handle hazardous wastes safely. Therefore, the grant of authorisation has to
fulfill  the pre condition of the industry having facility for safe disposal of hazardous wastes.
But, unfortunately, the State Pollution Control Boards were granting (and still granting)
authorisations without any one of the industries having any facility for safe disposal as
provided in the Rules. Even the permission which is granted for import of hazardous wastes,
was granted without following the conditions mentioned in Rule 11  by the State Pollution
Control Boards when only the Central Government is empowered to grant such permission.
The result was that the hazardous wastes were being dumped in our country by industries
having no facilities for safe disposal of such wastes and also not having any permission from
the Central Government under Rule 11. It is difficult to assess how much quantity of wastes
has come to our country illegally and surreptitiously. We know only the figures which have
been collected  by the High Powered Committee[6] under the chairmanship of Dr. M.G. K.
Menon for the year 1996-97 and 1997-98. Most of these hazardous wastes has come after
the ban imposed by the Delhi High Court and the Supreme Court. The quantum of hardous
wastes lying at the docks/ports/ICDS for the above mentioned period is as follows:-

 
Waste Category Zinc Ash Waste Imported in 1996- Waste Imported in
Lead Ash Lead Batteries 97
1997-98
Waste Oil Nickel Hydroxide
  21976 MT
9740 MT
 
  5020 MT
2444 MT
32561 MT
7167 MT
  3517 MT
7610 MT
      86 MT
 
The quantum of hazardous waste which has come to our country in spite of the ban imposed
by the Courts clearly shows-that there is  something which is inherently lacking in the law
with regard to the regulation and control of hazardous waste and that there is no
implementation of. the existing laws. As already mentioned above, in the present case the
implementing authorities were totally unaware of the hazardous waste being imported into
the country, not to speak of iii proper management and disposal in an environmentally safe
manner. The State, in law, is not only bound to implement the conditions imposed in the
Basel Convention but is also under an obligation to implement  the amendments, if any,
which are made periodically in this convention This is also made clear by the Supreme Court
in one of its directions The State owes independently a duty not only to protect the
environment but also to find out such alternatives which are environmental friendly and
which reduce and gradually take away the threat arising out of the effects of toxicity in the
environment. The High Powered Committee headed by  Dr. Menon is supposed to look into
the availability of various environmentally safe alternatives, and to suggest a list of other
hazardous substances which are required to be banned or regulated over and above the list
of the Basel Convention. The Supreme Court has recently expanded the "public trust
doctrine" holding that State is the trustee of natural resources which are by nature meant
for public use and  enjoyment. The State is also the trustee and is also under a legal duty to
protect the natural resources. Anybody disturbing the environing' balance and thereby
causing damage to the ecology has to be made  liable and should be penalised for the
same. It is described as "Polluters' Pays Principle” vide, Vellore Citizens Welfare Forum vs.
UOI[7] and the Indian Council for Environmental Legal Action vs. UOI[8]. Those industries
which are responsible for damage to the ecology are liable to pay  not only to the individual
sufferers but also to pay for restoring the damage done to the ecology.

 
There is another development which has taken place in effective implementation of Article
21 vis-à-vis the international law. The question as to what extent the provisions of
international conventions can be read into the national laws has been dealt with by  the
Supreme Court in Peoples Union of Civil Liberties (PUCL) Vs. UOI and Anr[9]. after referring
to the judgment of an Australian Court which pointed out that the courts should no interpret
and implement the conventions without such conventions becoming the national laws, held
that the “provisions of the covenant which elucidate and come to effectuate the
fundamental rights granted by our Constitution, can certainly be relied upon by courts as
facets of those fundamental rights and hence, enforceable as such”. The provisions of the
Basel Convention which gives effect to Article 21 of the Constitution and thereby creates
obligations of protection of the environment can certainly be enforced by courts in our
country without waiting even for bringing amendments in the domestic laws. The Courts in
our country, namely, the High Courts and the Supreme Court, which give effect to the
fundamental rights under the Constitution, can also pass such directions to give effect to
covenants of the Basel Convention which are necessary for the protection of the
environment, even if no domestic law is brought by the legislation. The domain of the
environmental jurisprudence in our country has therefore expanded sufficiently. The only
thing which is required is the will of the authorities to implement the laws and the people
becoming conscious of their rights and duties for protection of the ecology.

 
The Hazardous Waste (Management and Handling) Rules, 1989 have to be brought in
consonance with the Basel Convention; over and above, the Rules have to be framed by
keeping in mind the already alarming pollution level in our country, plugging the loop-holes
which erring industries take resort to. It has to be ensured that any hazardous waste which
is ultimately permitted for import must contain all the particulars of various components
certified by the exporting country and the importing country should verify those particulars
at the dock itself There should be laboratory facilities to check whether the informally
provided on the container and in the certificate are true and correct, if the information is
found incorrect then exporting country should be put under an obligation to take it back and
pay the penalty for sending such wastes. The laboratory facilities should have sophisticated
equipment and experts. The necessary amendments in this regard should be done in the
Customs Act as well as various other laws dealing \vii& the import. The industry which has
imported such hazardous waste mug have requisite permission and the facility for safe
disposal as a pre-requisite condition. The lifting of hazardous waste from the docks/ICDS
etc. should be done in a environmentally safe manner. There should be proper record to
show that the hazardous waste has reached the industry  safely and that it was recycled in
that industry alone and was not given | to any other traders outside. A report with regard to
each consigning should remain with such industry and also with the State as well as Central
Pollution Control Board. Such reports should also be available to the NGOs who have been
working in this field. It should be seen by the authorities that the disposal sites are
maintained by the industry properly in accordance "with the guidelines set up by the State.
In case  of any threat to environment immediate steps should be taken by the concerned
authorities. The concerned NGOs should be provided and  information with regard to the
particulars of each industry, the hazards waste which they are receiving, recycling and the
waste which is dump in the disposal sites. This will permit these NGOs to have a check'
pollution level and they will be able to give warning signals to the  Government as well as to
the people.

 
At this hour when the ecology is under severe threat from rising pollution, our bio-diversity
and indigenous knowledge is being Pirated our food security is in peril and our sovereignty
is under serious attention  we must resist all attempts which tend to affect the lives of our
people to have fresh air to breathe, to have soil free from pollution, to have safe drinking
water and the flora and fauna; without which the life itself  becomes a meaningless
existence.

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 Source: Indian Journal of International Law, Vol. 39, 1999