Setting a precedent for trafficking hazardous waste

By every rule in the book, this ship, carrying asbestos waste and radioactive elements, should not be in Indian waters, let alone be beached. And yet, despite well-premised objections, the central government persuaded the Supreme Court to rule that Blue Lady be dismantled at Alang.

On 6 September and 11 September, two related judgments in the matter of shipbreaking and hazardous waste were issued by the Supreme Court of India. The Division Bench of Justice Dr Arijit Pasayat and Justice S H Kapadia delivered both the orders. This was the same Bench that was seized with the Le Clemenceau case. The first order is a general order on the issue of ship-breaking. The second order was with specific reference to status of the Blue Lady (formerly SS Norway) -- a ship with known dangers: asbestos and radioactive material, and without clear papers -- currently beached at the Alang shipyard in Gujarat. This order gave a go ahead to dismantling of the Blue Lady.

Dismantling the Blue Lady exposes the mostly Bhojpuri and Oriya speaking causal and migrant workers and the villagers of Bhavnagar panchayats near Alang to toxic exposures. It also threatens their source of livelihood -- fishing due -- to marine pollution. By the government's own admission - a report of technical experts on shipbreaking -- the underground water in Alang is heavily polluted. The ship-breaking industry is already known to have a higher accident rate (2 workers per 1000) than the mining industry (0.34 per 1000). This is considered the worst in the world, and 16 per cent of workers here are suffering asbestos related diseases.

In its order on 11 September, the Honourable Supreme Court advanced "The concept of "balance" under the principle of proportionality applicable in the case of sustainable development…" and ruled that: "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 apex court ruled this way even though it also did not dispute that the entry of Blue Lady in Indian territorial waters and its continued presence since June 2006 was itself in violation of court's own order of 14 October 2003. It was also in violation of the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal, and a number of other international environmental and labour conventions and treaties -- that govern the breaking of contaminated ships - to all of which India is a signatory.

In the 11 September order, the honourable justices refer to former the Attorney General of UK saying, "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."

The 21-page keynote address of Lord Goldsmith has this paragraph that has been referred to in the apex court's order. It reads as follows: "The third principle is that of proportionality. One of the key themes of the ECHR is the concept of balance. The Convention took its lead in this respect from the Universal Declaration of Human Rights-and in particular, article 29 which expressly recognises the duties of everyone to the community and the limitation on rights in order to secure and protect respect for the rights of others. Under the Convention some rights are absolute. They are so fundamental that there can be no compromise on them. We take the view that the prohibition on torture is simply nonnegotiable. I regard the right to a fair trial as another of those fundamentals. That is why we have rejected reducing the burden of proof for terrorism offences and allowing secret evidence in terrorism trials."

It is shocking to note that Goldsmith's speech in question does not appear at all to be relevant to the plight of workers, villagers, environment, ship-breaking industry, steel or hazardous wastes management. Therefore, it cannot be a convincing rationale for knowingly letting a most vulnerable workforce and communities suffer from asbestos and radioactive exposure that will arise from breaking up the Blue Lady.

Verified threat of hazardous waste on-board - radioactive elements

The bench granted permission for the dismantling based on the submission by Gopal Subramaniam, the Additional Solicitor General, to the effect that the ship does not have any more radioactive material and beaching is irreversible. But contrary to the recommendations of the Technical Experts Committee on Hazardous Wastes relating to Ship-breaking, Gujarat Pollution Control Board, Gujarat Enviro Protection and Infrastructure Ltd, (GEPIL) and the ship's current owner Priya Blue Shipping Pvt Ltd., the ship does contain radioactive substances at thousands of places.

In the order passed the apex court merely states, "There was also an apprehension rightly expressed by the petitioner regarding radioactive 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 Gujarat Maritime Board (GMB). The apprehension expressed by the petitioner was 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 radioactive material on board the ship."

What changed?

A perusal of the report of the inspection undertaken on 14 August 2007 shows that the entire inspection of 16 floors of 315 meter long ship seems to have been completed within a period of 4 hours (a commendable task no doubt) and the report states that they could detect only 12 smoke detectors containing Americium 241. Having found these 12 smoke detectors containing radioactive materials, the report concludes that the ship "now, does not contain any radioactive material on board".

In my petition, I had referred to a letter sent by one Tom Haugen (who had been the Project Manager for Engineering, Delivery, Installation, Commissioning and later services and upgrades as regards Fire Detection Installation Systems on-board the Blue Lady). Haugen had written to Meena Gupta, Chairman of the Technical Experts Committee (by virtue of being the Secretary at the Ministry of Environment) that the fire detection system on the Blue Lady contained 5500 detection points which included 1100 ion smoke detectors that use radioactive elements composed of Americium 241. Further, in a separate letter to the Prime Minister dated 19 September 2007, Haugen has reiterated the fact about the enormity of radioactive material on the ship given that he himself supervised its installation.

Countering the AERB-GMB report that that ship did not contain any radioactive material after their inspection, Haugen wrote that in most cases, the fire detection systems are not labeled or indicated in any way, as they are typically 'buried' out of sight. According to Haugen, due to the risk of hazardous radioactive exposure, they should only be handled by professionals or certified technicians. "The system and its detectors are very subtly placed and virtually completely hidden in most parts, so it is totally understandable that a non-expert team might miss it during a broader inspection of the vessel," wrote Haugen.

In fact, even though the Technical Experts Committee had put in its 2006 report that there was no radioactive material on the ship, one of the Committee's members Dr Virendra Misra of the Industrial Toxicology Research Centre, Lucknow, had disagreed with the findings. He wrote that, "Presence of radioactive materials should be ascertained well in advance. Though it is mentioned in the report that radioactive material is not available, in my opinion there is possibility of the presence of radioactive materials due to existence of liquid level indicators and smoke detectors on the ship." This was ignored by TEC's then chairman, Prodipto Ghosh. The final report of the Technical Committee was signed by only Ghosh. All of this is in the records of the apex court.

But Additional Solicitor General Subramaniam persuaded the apex court to rely on the report of the Prodipto Ghosh-led Technical Experts Committee. (Ghosh was Secretary at the Environment Ministry and Chairman of the Committee. He has since retired, and his post has been taken over by Meena Gupta.) This is a report that had submitted that there is no radioactive material on the ship, as noted earlier. But following the submission of Tom Haugen's letter to the apex court and our request to the AERB, the AERB team inspected the ship. As noted earlier, it concluded that there are only 12 equipments that have radioactive material in it. Subramaniam was then compelled to partially admit in the hearing to the presence of radioactive material on Blue Lady. But the fact is that there are still over one thousand such equipments in the ship and Haugen has the diagram showing the locations of the equipment.

Verified threat of hazardous waste on-board – asbestos

On the asbestos present in the ship, the court also heard ingenious arguments advanced by the learned Additional Solicitor General Subramaniam that, "In the present case, the vessel does not contain single kilogram of asbestos and/or ACM as cargo". It had never been the stand of the plaintiff that asbestos or Asbestos Containing Material (ACM) was being sought to be brought in as cargo. Asbestos is already built into the ship's structure.

The question of differentiating between inbuilt material carrying asbestos and asbestos cargo had infact already been addressed by a Parliamentary Committee. The Parliamentary Committee on Petitions, on 17 August 2007, issued its report in response to the matter being raised in Lok Sabha by Basudev Acharya (CPI (M), Bankura, West Bengal). Acharya, a senior parliamentarian, had petitioned the Committee, arguing that Blue Lady's entry violates India's sovereignty. Incidentally, the Environment Ministry did give oral evidence before this Committee, but did not disclose the radioactive content of the ship.

The Parliamentary Committee, chaired by Prabhunath Singh (MP-Janata Dal (United), Maharajganj, Bihar), in its response, noted that it was extremely concerned that the ship contains an estimated 1240 MT of ACM and about 10 MT of PCBs as inbuilt material and as a part of its structure. The committee recognised that asbestos fibers when inhaled or when the PCBs on-board are consumed by human beings, the same may cause cancer unless proper precautions are taken for safe handling of these materials by the workers. The report then got into issue of asbestos in the cargo vs. structure, virtually indicting the government: "The committee strongly deprecate (sic) the repeated stand taken by the ministry that since no hazardous waste have been allowed on boards as cargo, there is no violation of the Hon'ble Supreme Court directions. The Committee need not emphasize that hazardous waste whether as cargo or inbuilt material are equally detrimental to the environment and to the human health."

Earlier Kalraj Mishra (MP-BJP, Lucknow), member of the Parliamentary Committee on Industry, had asserted that the French ship Le Clemenceau was sent back, and the Blue Lady, being 50 times more toxic than the Le Clemenceau, should therefore also be sent back.

It appears that the Supreme Court has accepted that 85 per cent of the asbestos, contained in the form of wall partitions, ceilings and the roofing in rooms and galleries in the ship, did not pose a risk if those parts were removed without damaging them. But no mention seems to have been made as regards the balance 15 per cent of the asbestos contained on the Blue Lady, which in itself would come to 186 metric tonnes. Removal of this asbestos is bound to cause grave risks of asbestosis, mesothelioma, lung cancer and other related illnesses to workers.

In my petition, I brought to the notice of the apex court that asbestos waste is banned in India and asbestos itself is banned in some 45 countries and even the World Trade Organisation had passed a verdict against it because of its carcinogenicity at every level of exposure. There is indisputable evidence that safe and controlled use of asbestos is impossible. Despite this, the Additional Solicitor General Subramaniam argued, "Safe use and controlled use of asbestos is possible in India." He said that asbestos waste in the structure of the ship was not hazardous and asserted that asbestos waste is banned in India but that applies to 'virgin' asbestos waste!

The Hon'ble Supreme Court has not yet dealt with the application filed by Bhagvatsinh Haluba Gohil, Sarpanch, Village Sosiya, Tehsil Talaja, and District Bhanvnagar on behalf of 30, 000 villagers and 12 panchayats of Bhavnagar district of Gujarat. The villages are in the vicinity of Alang ship-breaking yard. They sought directions asking the court to "direct that the ship named "Blue Lady" (SS Norway) be not allowed to be dismantled at the Alang Ship-breaking yard." The villagers have argued that "The dismantling of the ship would have hazardous effect on the residents of the villages near the Alang ship breaking yard as the ship contains large amount of asbestos which, when exposed is hazardous to the health of the residents living in the twelve villages."

In August 2006, an acclaimed scientist, a former Union Minister, Prof M G K Menon, and the Chairman of the Supreme Court's High Power Committee on Hazardous Wastes, had written to the Chief Justice of India and argued that the Blue Lady should be sent back to Malaysia or Germany from where it had come without decontamination.

Faulty argument on a beached ship not being refloatable

There's more. Allen Todd Busch, Vice President and General Manager, Titan Salvage, a Crowley Company, and one of the largest and most respected salvage companies, also wrote to the Prime Minister. He said, "The primary reason the court has ruled in favour of breaking the vessel, in its current position, is because there is a belief that the vessel can not be removed from where it now rests." Busch disagreed with that premise. He wrote that his firm had the capability and expertise to refloat the vessel. "Please allow us to present to the Prime Minister and India's Court our credentials, history and experience that there is actually very high probability that the BLUE LADY is not at all in an "irreversible" position, as the esteemed Court has found," wrote Busch. Also the firm Aaage Anderson, which was involved in the Le Clemenceau case, has said in a technical memo that the Blue Lady can be refloated.

Even as it was becoming clearer that the Blue Lady (SS Norway, SS France) can be sent back, the Additional Solicitor General Subramaniam led the court into believing that since beaching is irreversible, that the Blue Lady cannot be sent back. But the Blue Lady, as noted earlier and in previous articles, is illegal traffic as per all relevant laws. There is documentary proof that such ships are required certification for prior decontamination of the ship in the country of export. In the case of Blue Lady let alone decontaminating the ship as per the court's order, it has till date not even been claimed that it has been decontaminated.



Dangerous precedent for globalisation of waste

The list goes on and on. I had also pointed in my petition before the honourable court that the "Prior Informed Consent" convention -- which has been accepted in the Rio Declaration, Basel Convention, Cartegena Protocol, Rotterdam Convention, and the Stockholm Convention, had also been incorporated in Hazardous Wastes Rules 1989. As per this principle, no member state can send hazardous waste to a developing country without its prior consent. This has not been followed in the case of the Blue Lady. Another important convention -- that has been violated -- is that a ship ought to be decontaminated prior to its export for dismantling, which view has been expressed earlier by the apex court itself.

Dismantling of the Blue Lady would set a dangerous precedent. Hazardous and poisonous material does not become non-hazardous and non-poisonous merely because the government -- the Environment Ministry and Additional Solicitor General -- assert so. The Blue Lady story shows how hazardous industries, substances, wastes are being transferred to India in full public glare due to the connivance of Indian authorities who have compelled the highest court to decide matters on technical and humanitarian grounds (the original permission to beach the ship in 2006 was given on humanitarian grounds owing to inclement weather) rather than on a legal basis.

Even though the toxic ship Le Clemenceau was recalled in early 2006 on a verdict by a French court, the Blue Lady story only exposes the conflicted European position on ship-breaking and asbestos. Germany has condoned the Blue Lady's violation of Basel Convention - the contaminated ship left its shores in 2005 - to stay unreversed. This has in turn allowed the ship owners to successfully escape exorbitant decontamination cost in Europe.

P.S.: The recent news report suggesting that dismantling of Blue Lady has begun is far from the truth. In fact it is an effort by the cash buyers to tell the interested ship owners that things have not come to a standstill at Alang. This is to ensure the flow of obsolete ships at Alang. The ship-breakers have not even claimed that they have decontaminated the ship. It appears to be a planted story. In fact it is an effort by the cash buyers to tell the interested ship owners that things have not come to a standstill at Alang. This is to ensure the flow of obsolete ships at Alang. The reasoning presented before the court was an exercise in sophistry. If sustainable development is the reason then why do judges say “Lastly, we may point out that there is no dispute that on 15/16.8.2006 the vessel beached off Alang coast. It is not in dispute that the process of beaching is irreversible.” (Supreme Court order Para 14, 11.9.2007) Their main but insincere reasoning is that it will give jobs to 700 workers and 41, 000 tonne of steel. The real number is 300 workers. But mere 41, 000 tonne is of not at all of significance since India is the world's largest producer of direct reduced iron (DRI) or sponge iron and is the seventh largest steel producer in the world with an overall production of about 40 mt in 2006 . Three-fold rise in steel production capacity to 120 million tonne is going to make the second-largest steel producer in the world in very near future.

Dismantling plan submitted by Priya Blue Shipping Ltd to the Technical Experts Committee (TEC) is simply a paper work that has failed to inform the court as to what it would do for PCBs, incineration ash, ballast water, radioactive material, Lead and other heavy metals. Given the fact that there are casual and migrant workers, the commitment to protect workers is not at all credible. Safe handling of asbestos is not possible, it requires a Astronaut's dress that is not possible to work in heat...in any case even the TEC report has noted that these safety gears are provided to workers only when inspection team visits Alang yards. Riky, the Danish ship has been dismantled and the matter is pending before this very bench but they have decided not to hear the matter so far although it preceded the present ship but showed inexplicable exemplary speed in dealing with Blue Lady. It is quite well known that as long as Gujarat Maritime Board the supervising authority, there would be no safety for the workers and the villagers. As of 15th October, 2007, the 12 village councils (panchayat, a local governance unit) heads were deliberating over ways to protest against the court order. They have scheduled their meeting for 25th October.