On 15 April, 2005, Connie Hedegaard, Denmark's environment minister alerted her Indian counterpart A Raja about the illegal movement of a 51 year-old asbestos laden ship, Kong Fredrick IX. The ship was on its way to Alang ship breaking yard, Gujarat for scrapping. The ship's new owners Jupiter Ship Management, a Mumbai based company, had renamed it to 'MV Riky'.

Hedegaard wrote: "I write to you in a matter of great concern for me as Minister for the Environment in Denmark - the illegal traffic of hazardous substances in ships." She said that 'Kong Frederik IX' had left Denmark on 16 March 2005, allegedly to be put in service in the Middle East as a cargo ship, and that it was transiting in the Suez, on its way to the Red Sea. Hedegaard alerted Raja: "Several independent sources of information claim that the ship is now bound for the West-Indian coasts to be dismantled and it could arrive in India within a week. Therefore the information given by owners etc. could be false." She also referred to her conversation with Raja in New York at a meeting of the UN Commission on Sustainable Development and their discussing the matter in person.

Hedegaard referred to the provisions of UN's Basel Convention, of which Denmark, India and 168 other countries are signatories. In accordance with the Basel Convention, a ship must be characterized as waste as the owners intend to dispose of it. Further, transboundary movement of hazardous substances without prior notification should be deemed as illegal traffic in waste.

India's environment minister Raja's belief that Riky could not be classified as wastes or as hazardous waste seems baseless because Denmark, the country of export treats it as 'hazardous waste'.

Had this not been the case, any country could make a claim that they do not consider a waste to be a waste, exposing concerned countries to a trade in toxics which they might wish to deny.

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The Danish minister appealed to the Indian environment minister saying, "I believe our interests are joint - and I call on you to co-operate in this case by denying the ship to be dismantled in India - and refer the ship to return to Denmark to be stripped of the hazardous waste." She added that by that, India and Denmark could send a strong signal, that neither country would accept export of environmental problems that could be solved locally, and that "we - as governments - will not accept this kind of foul play which results in lasting damage of the environment."

Responding to Hedegaard on 28 April 2005, Raja wrote: "As you are aware India is a party to the Basel Convention since 1992 and has strengthened the national legislation Hazardous Wastes management notified in 1989 to ensure compliance of our obligations under the Convention. We have determined that the ship cannot be classified as "Wastes" within the scope of Act 2.1 of the Basel Convention." Raja noted that a ship sailing under its own power is not "waste".

Raja also wrote that according to the Gujarat Maritime Board (GMB), Gujarat Pollution Control Board (GPCB) and the Central Pollution Control Board (CPCB) who inspected the ship, there was no objectionable hazardous material on it. He noted that the ship had been beached since 23 April 2005 at Alang, Gujarat. "There are only in built insulation materials which are part of the structure of all ships. As per Indian Laws and our position under the Basel Convention and the IMO, the ship has the requisite permission for beaching," he asserted to Hedegaard.

At around the same time as Hedegaard's letter, Per Stig Moller, the Danish Minister of Foreign Affairs also wrote to K Natwar Singh, the then Indian Foreign Minister. This was followed-up by meetings between Michael Sternberg, the Danish ambassador in Delhi and the Pradipto Gosh, the top bureaucrat and Secretary at the Indian Ministry of Environment and Forests (MoEF). Nothing changed.

On 23 April 2005, "Riky" arrived for scrapping at Alang under the jurisdiction of GMB. Even the flag under which the ship sailed in isn't perfectly clear. N B Deshmukh, Assistant Commissioner, Customs Division, Bhavnagar, Gujarat said that Riky was carrying the flag of Democratic Peoples Republic of Korea (North Korea). However, Madhumitta Dutta, who later in 2005 challenged the MoEF in the Supreme Court on the ship's admission into India, alleged that the ship sailed in under the flag of Roxa, a non-existent "country".

Subsequently, on 2 June 2005, the Supreme Court Monitoring Committee (SCMC) on Hazardous Waste permitted the dismantling of Riky subject to the presence of officers from CPCB and GPCB. The SCMC was set up by the Supreme Court in October 2003 to monitor the progress in implementation of Hazardous Waste (HW) Rules as well as a series of orders on hazardous waste matters passed by the apex court. Incidentally, Dutta had written to the SCMC on 24 May 2005 alleging that the registration document for renaming the ship had been fabricated to allow beaching in a bid to confuse the Danish authorities. Riky has since been dismantled.

Was the Government of India's decision to let in the ship illegal and wrong?

Breaking every law in the book

The direction to dismantle the ship was issued despite the fact the Basel Convention specifically categorises ships destined for scrapping as wastes. Riky's movement to India did not fulfil the minimum requirements of the Basel Convention. The ship left Denmark without proper notification and this is considered illegal under the Convention. Riky also arrived without Denmark's authorisation, and it could not have carried Form 7, which is used to maintain records of hazardous wastes imported. Form 7 is required under Indian law and the Government of India waived this requirement.

The SCMC also seems to have ignored the report of the visit of the joint inspection team of CPCB and GPCB officials that had visited the ship on 26 April 2005. The team cited inventory of cargo materials prepared by the Department of Customs saying "the ship owners could not provide a detailed inventory of In-Built Materials (including asbestos, glass wools etc) of the ship." It noted that "the workers of the plot were found to be little equipped to handle asbestos waste expected to be generated from the ship. The workers were not even trained properly." (The plot is where the shipbreaking happens.)

The team had then recommended, "The ship owner must provide a complete inventory of the hazardous materials in built in the ship for the verification on the disposal of such waste at the later stage." They also recommended that the inventory may be made a compulsory requirement for the ship owners to submit to the GPCB well in advance so that, "necessary decision for granting permission may be taken."

Also, by conducting post facto inspection of the ship after its beaching, the GPCB violated CPCB's guidelines which specifically require an inspection and an inventory prior to beaching. Interestingly, the inspection team added, "The present system of checking (inspection) by GPCB, after beaching practically, hardly serves any purpose, so long as physical verification of the hazardous waste materials on board is concerned."

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Basel Convention rules

India signed the Basel Convention on Transboundary movement of Hazardous Waste, commonly called 'Basel Convention', on 15 March 1990 and ratified it on 24 June 1992. The Basel Convention seeks to define hazardous wastes, minimize its generation, dispose of them as close to the source of generation and to reduce the transboundary movement of hazardous wastes. The following flows from the Basel Convention:

 •  The Convention defines "wastes" as: "substances or objects which are disposed of or are intended to be disposed of or are required to be disposed of by the provisions of national law." Ships destined for ship breaking operations are defined as "wastes".

 •  A decision on October 2004 conference that India was a party to says that "that a ship may become waste as defined in Article 2 of the Basel Convention and that at the same time it may be defined as a ship under other international rules." The decision further recognised "that many ships and other floating structures are known to contain hazardous materials and that such hazardous materials may become hazardous wastes as listed in the annexes to the Basel Convention." This decision was endorsed by all parties to conference, including India.

 •  Prohibits exports of hazardous waste from OECD countries (Organisation for Economic Co-operation and Development) and Liechtenstein to others.

 •  Prohibits the export of hazardous waste to Parties which have prohibited the import of hazardous wastes.

 •  Prohibits hazardous waste exports from a Party "if it has reason to believe that the wastes in question will not be managed in an environmentally sound manner."

 •  Obliges a signatory state of export to ensure that the waste in question is properly taken care of, either by re-import or environmentally sound disposal elsewhere in accordance with the Convention.

 •  Obliges signatory nations to introduce appropriate national/domestic legislation to prevent and punish illegal traffic.

 •  Says that: "any transboundary movement of hazardous wastes or other wastes: (a) without prior notification shall be deemed to be illegal traffic…"

Indian law

On paper, Indian Law - both from Parliament and Supreme Court case law -- on Hazardous Waste import is more or less in line with what the Basel Convention requires of a signatory nation. The Supreme Court order of 14 October 2003 which deals with shipbreaking states:

 •  "Before a ship arrives at port, it should have proper consent from the concerned authority or the State Maritime Board, stating that it does not contain any hazardous waste or radioactive substances. AERB should be consulted in the matter in appropriate cases.

 •  "At the international Level, India should participate in international meetings on ship breaking at the Level of the International Maritime Organization (IMO) and the Basel Convention's Technical Working Group with a clear mandate for the decontamination of ships of their hazardous substances such as asbestos, waste oil, gas and PCBs prior to exports to India for breaking. Participation should include from Central and State Level.

 •  "Before clearance of any hazardous wastes imported to India the Port and Customs authorities would ensure that the consignment in question corresponds with the details of authenticated copy of Form 7 sent by the country of export." (Form 7 is the format for maintaining records of hazardous wastes imported.)

 •  The Supreme Court order also has a penalty/enforcement clause. "...when illegal import of hazardous waste takes place due to non-fulfillment of the requisite conditions required under the Rules, an enquiry should be conducted and appropriate action taken against concerned officer/officers of department responsible therein and, if necessary, a specific provision to that effect can be incorporated in Rules, wherever needed."

 •  Central Pollution Control Board guidelines: "Waste substances and articles consisting of or contaminated with toxic substances listed beyond a particular limit are classified as hazardous waste, under the recommendations of 'Basel Convention' ...The customs authority and/ or the concerned State Maritime Board shall ensure this and issue a certificate to this effect that the vessel is free from the prohibited materials. Such vessels shall also not be allowed by the SPCB for breaking without ensuring the compliance of relevant provision under the Environment (Protection) Act, 1986."

Minister Raja's belief that a ship cannot be a waste or a hazardous waste seems baseless because Denmark, the country of export, had termed Riky as 'hazardous waste'. Had this not been the case, any country could make a claim that they do not consider a waste to be a waste, exposing concerned countries to a trade in toxics which they might wish to deny. The Basel Convention is based on the principle of denying waste trade without mutual consent.

There were serious repercussions. On 4 May 2005, the Danish Environment Minister again wrote to Raja that two more Danish ships, 'Dronning Margrethe' and 'Rugen' had set sail for India but 'disappeared' in the high seas. Riky's admission had set a bad precedent. Hedegaard again stated categorically that it's a "case of illegal traffic of hazardous waste." She further added, it is "containing hazardous substances in the form of asbestos." The name of 'Dronning Margrethe' was later changed to 'Beauport II' and it was allowed into India.

The challenge in the Supreme Court

On 13 August 2005, an Intervention Application was filed by Madhumitta Dutta of the Delhi and Chennai-based NGO Corporate Accountability Desk in the Supreme Court of India in an ongoing hazardous waste case, challenging the contention of the Ministry of Environment and Forests on Riky. Dutta informed the court of the violations involved in allowing Riky to beach at Alang, including violations of the apex court's own orders of October 2003.

Dutta's prayer was that the Government of India should cooperate with the Government of Denmark, as a party to the Basel Convention and furthermore, initiate an enquiry into the illegal entry of the ship. The applicant prayed that appropriate action be taken against concerned officers of Gujarat Maritime Board, Gujarat Pollution Control Board and Customs Department, Bhavnagar as well as the Ministry of Environment and the Minister himself.

In its reply, the MOEF stated that the joint visit report of the GMB, the GPCB, and the CPCB indicated that there was no hazardous waste material on the ship. The Ministry claimed that the ship did not carry any material classified as hazardous waste other than what was there as in-built insulation material, which are part of the structure of ships and that this could not be termed as hazardous waste. It also revealed that in the process of dismantling (of about 40 per cent of the vessel) the asbestos (used to insulate pipes) obtained was about 150 kg.

On 12 September 2005, M Subba Rao and Additional Director at MoEF filed an affidavit in the Supreme Court refuting the claims against the Ministry in the matter of Riky. Subba Rao is also Member Secretary of SCMC and filed the affidavit on behalf of the SCMC. This demonstrated the conflict of interest between the MoEF and SCMC, which appears to have compromised the independence of the SCMC. The SCMC is a Supreme Court-created committee for independent oversight on HW regulation in the country and for assistance to the apex court with cases in this sphere. But the SCMC's membership comprises of bureaucrats from the very government departments that are defendants in hazardous waste cases being currently heard by the Supreme Court.

Commenting on the decision to allow Riky into India, Dr Claude Alvares, another member of the SCMC said that affidavit filed by the government represented the position of the government and not the SCMC. "I was wholly unhappy with the Ricky affidavit filed on behalf of the SCMC. Others in the SCMC agreed with me. I made a lot of noise in the SCMC about it because that affidavit was prepared by the MoEF and the GPCB, both of whom are respondents in the petition on hazardous wastes, and filed in the name of the SCMC. We thought our objections would be taken on board. They were not," said Alvares. He also noted that none of the Riky documents were shown to any of the SCMC members. (Note: Both spellings 'Ricky' and 'Riky' have been in use, even though the ship was last called 'Riky' before scrapping.)

But why has the Supreme Court allowed the independence of its own committee to be compromised? Why did it create a committee to oversee the government's enforcing of hazardous waste rules, and let government officials themselves sit on it? The Supreme Court generally asks the government to suggest names or asks them to constitute its committee; the government blatantly ignores the principles of natural justice and conflicts of interest. Ministries make their own officials members of such committees -- they have done so in several other cases. For instance, there is another committee called "Supreme Court Committee on Waste to Energy", where there is a similar conflict of interest.

On 15 September 2005, the MoEF responded to press reports saying in a press release that no further reference from the Danish Minister for Environment had been received since April 2005 on Riky. This was not correct because there had in fact been exchange of letters between the two governments since then. Not surprisingly, Hedegaard took issue with the press release, expressing disappointment with the incorrect description of the involvement of Danish government. She said, "Right upon the issuance of the Press Release, the Danish ambassador again took contact with the Indian environment and foreign ministries."

The MoEF press release went to explain that there is disparity between three guidelines regarding breaking of ships prepared by International Maritime Organization (IMO), International Labour Organization (ILO) and Basel Convnetion, as each has different focus on ship-breaking. But the fact is that a Joint Working Group on Ship Scrapping was established by IMO, the International Labour Organization and the Conference of Parties to the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal, for a more cohesive approach to the problem. The group concluded its second meeting in Geneva in December 2005. The Indian Government is party to all of this.

The MoEF press release also mentioned that the Riky had a "cargo free certificate issued by the Customs Department, as the vessel arrived at Alang in ballast (empty)." The difference in voices within the arms of the government continued. On 30 September 2005, N B Deshmukh (Assistant Commissioner, Customs Division, Bhavnagar, Gujarat) said in an affidavit that the quantity of substances used in the structure of Riky which can lead to hazardous waste was not known to the customs authorities. But MoEF and SCMC contended that the customs authorities had boarded the ship at anchorage and had not found any hazardous waste.

Why were the MoEF and SCMC interpreting an "I don't know" as a "not there" in the matter of wastes on Riky?

In an interview to Frontline and in conversation with me early this year, Alvares said, "The MoEF is the last institution in this country that is concerned about the environment." He noted that the SCMC got a report saying the asbestos waste generated on demolition was 222 kg, but the Danish authorities claimed it had 17 tonnes of ACM (asbestos containing materials). He said that the SCMC wanted to re-examine this aspect. "We took serious note of Riky and then Clemenceau because we found that in the case of Riky, the Danish government objected to the export of the ship, and in the case of Clemenceau, we had indication that decontamination was not done as required by the Supreme Court order and the directions of the SCMC. These are fairly logical decisions. Other ships continue to come to Alang, but follow the norms given in the apex court order," said Alvares.

SCMC members including Alvares have been skeptical of the Danish Minister's motive because they are not aware of any action on ship owners having been taken pursuant to the ship leaving their shores illegally.

However, a 21 November 2005 letter from the Danish environment ministry speaks to the contrary. Pointing to possible prosecution, Hedegaard wrote, "when Kong Frederik (Riky) reached the Indian coast, the Danish authorities hereby got the final confirmation, that the owner intended to scrap the ship, Danish Environmental Protection Agency (DEPA) asked the Danish Police to start an investigation." Hedegaard pointed out that the request to the Danish Police was filed on 25 April 2005 to prosecute the responsible companies and persons involved for violation of EU shipment regulation, the Danish Act on Protection of Environment as well as violation of the Danish Criminal Act. The role of the Danish city of Korsør is under investigation as local authorities may have committed an error by granting permission to the ship to leave the local harbour.

Back in India, the SCMC vs. MOEF tension took a new turn this year. The SCMC appointed advocate Raj Panjwani as their counsel. It appears the SCMC wishes to steer clear of MoEF's officials filing affidavits on their behalf with the Supreme Court. It also appears that the apex court could see through the conflict on interest and on 13 February, approved Panjwani to appear on behalf of SCMC. Earlier, the SCMC did not have its own independent counsel.

The next hearing of the Riky case is currently listed for 28 April 2006.

Bleak outlook for Hazardous Waste regulation

Tackling illegal and hazardous waste movement has been at the international agenda in different forums for at long time. What is evident from the goings on so far is that little progress has been made on the ground since 1995 when India's Supreme Court took cognizance of one Bhopal based Bharat Zinc company importing hazardous zinc ash waste without following relevant procedures. Although the court has pursued the entire issue of hazardous waste for over 10 years, the Riky case illustrated best that in the absence of compliance with the court's orders, the situation has come back to square one.

At least one of the reasons for this is that the SCMC appears to have been reduced to a status of being an arm of the MoEF. At the apex court, Madhumita Dutta, in her rejoinder to the SCMC/MoEF affidavit had gone to the extent of alleging that both these agencies alongwith the Customs had misinterpreted several provisions of both national and international law in a manner that seemed " mischievous." She worried that the bodies had failed to discharge their statutory obligations. It is now feared that there may be many other instances where ships are being permitted to be broken as waste in contravention of the law.

Therefore, it would be in the fitness of things if the apex court asks the Gujarat Maritime Board to submit to the court a comprehensive list of all ships that have beached in Alang ship breaking yard after its order of 14 October 2003, along with the papers required for their entry as laid out both under the Basel Convention and India's Hazardous Waste Management Rules.

In February 2002, the Supreme Court had fined the MoEF Rs.10,000 for not having complied with its orders regarding the disappearance of hazardous waste oil from major ports in the country. The waste oil was imported into the country as lubricants. Perhaps the apex court may be compelled to once again impose penalties on the government.