Blue Lady Does a Riky & Demolishes the Clemenceau precedent

Supreme Court is yet to hear the matter regarding Riky ship although it preceded the Blue Lady case that was decided with its orders of 6th and 11th September, 2007. Like Riky, first a ship with dubious credentials leaves the shores of Germany. Then a in spite of manifest act of fraudulent misrepresentations month later, Indian Supreme Court allowed it to anchor even in the absence of legal grounds at Alang, Gujarat's massive shipbreaking yard, on humanitarian considerations. Unlike Clemenceau, this ship named Blue Lady(SS Norway, SS France)sailed through the law to live in the infamous company of Kong Frederik IX" alias "Frederik" alias "Riky" that sailed under the flag of an unknown country named Roxa. Blue Lady is unusual for the price at which it was bought at one stage. The price of this 16 floor and 315 meter long ship is 10 dollars.

GIVEN BELOW IS A SHORT NOTE BY SANJAY PARIKH, ADVOCATE FOR THE PETITIONER ON THE GENERAL RECOMMENDATIONS OF TECHNICAL EXPERT COMMITTEE BY THE TECHNICAL EXPERTS COMMITTEE (TEC) HEADED BY UNION ENVIRONMENT SECRETARY , MINISTRY OF ENVIRONMENT & FORETS (MOEF)

DECONTAMINATION:

1. The ship ought to be decontaminated prior to its export for dismantling, is concluded by this Hon’ble Court in its earlier judgement/order dated 14.10.2003 RFSTE Vs UOI reported in 2003 (9) Scale 303 = 2005 (10) SCC 510. The directions given by this Hon’ble Court were based on the recommendations of the High Powered Committee (HPC) constituted by this of experts under the Chairmanship of Professor M.G.K. Menon an eminent scientist. The High Powered Committee constituted pursuant to the directions of this Hon’ble Court, inter-alia, submitted recommendations on ship breaking and Hazardous waste. The counsel for the petitioner submitted a compilation of documents to show the origin of ship breaking issue [Terms of Reference NO. 14] and that “prior decontamination before export” was the core concern:
(i) Affidavit of Central Pollution Control Board (CPCB) dated 29.2.2000 stating that the ships should be properly decontaminated before export to India.
(ii) Order dated 20th April 2000 where the precise issue which was referred to High Powered Committee was that ships which come to India should be properly decontaminated before they are exported to India.
(iii) The Submission of Gujarat Maritime Board (GMB) before the High Powered Committee was that the Hazardous/toxic waste contained in the structure of empty ship should be removed by the exporting Countries as such wastes are banned under the Basel Convention. GMB categorically stated that a ship should be allowed to sail only when they are made completely hazardous/toxic free from every corner of the structure of the ship before being auctioned.
(iv) The report of the High Powered Committee –Professor Menon Committee after dealing in great detail with the Ship Breaking issue recommended that the “Ships-Destined for ship breaking on Indian Coast ought to be decontaminated as far as possible.”
(v) The judgment of this Hon’ble Court dated 14.10.2003 reported in RFSTE Vs. Union of India in 2005 (10) SCC 510 at page 536 all the directions given therein are important. Reading of directions 1, 2 and 16 makes the issue of prior decontamination very clear: such decontamination has to be ensured before arrival of the ship at the port of India. India’s stand in the Basel Convention should be that the ship should be decontaminated before its export to our country.



(vi) MoEF (which has changed its stand now in Blue Lady case) even in the French Ship (Le Clemenceau)) issue had filed an affidavit dated 10.2.2006 stating requirement of prior decontamination and that it is decontaminated “to the extent possible” without endangering ability of the ship to float.

These directions given by this Hon’ble Court on the basis of High Powered Committee recommendations, CPCB recommendations, GMB’s submissions, MoEF’s stand so far, can not be in any manner be diluted as it will be against the interest of the Country. It will be a clear case of dumping of Hazardous wastes, if a ship is allowed to enter in the Indian territory without decontaminating the entire Hazardous waste which contains lethal amount of asbestos/ PCBs, waste oil etc. It will affect our coastal area and the environment in an irreversible manner besides being a health hazard to the workers and people living in the vicinity. Merely because the land-fill facility is available in the 2006, after this Hon’ble Court’s directions in the year 2003, that it should not be indiscriminately filled up with the wastes dumped by the developed countries. It may be noted, leaving aside the fine distinction made between the ship for scrap and the hazardous waste, that ultimately such ship is a massive hazardous waste which is floating on the vessel. Such hazardous waste is otherwise banned under the Hazardous Waste Rules, 1989 as amended up to date.

PRIOR INFORMED CONSENT
2. The second important point is about the prior informed consent. This procedure is accepted in the Rio Declaration, Basel Convention on Transboundary Movement of Hazardous Wastes and Their Disposal, Cartegena Protocol, Rotterdam Convention on Prior Informed Consent Procedure, Stockholm Convention on Persistent Organic Pollutants (POPs) etc. Prior informed Consent is therefore an important component of the International Environmental Jurisprudence by which the harmful effects on the environment of the developing country, caused by a developed country, can be checked/prevented. The said principle has also been incorporated in the Hazardous Waste Rules, 1989 as amended vide Rule 11, 12, 13 and 14. The provisions of the Stockholm’s Declaration, Basel Convention and Rio Declaration have been accepted as part of Article 21 of the Constitution. In RFSTE Judgment (Supra ) as well as in several other judgments, this Hon’ble Court has accepted International Environmental Principles and such conventions as part of Article 21 of the Constitution. This Hon’ble Court may peruse Article 21 of Stockholm Declaration, 1972, Articles 12 and 19 of the Rio Declaration 1992, Article 6 of the Basel Convention and Rules 11 to 14 of the Hazardous Waste Rules, 1989 which are enclosed for perusal of this Hon’ble court.
Being a signatory and having ratified the Basel Convention, Stockholm Convention on POPs and the Rotterdam Convention, the principles of international law become applicable including the requirement to follow prior informed consent which is one of the important principle in the Basel Convention. The Countries which are member states of this convention can not send hazardous waste to the developing country without their prior consent as this alone (1) gives an opportunity to the developing country to examine whether it can dispose of such wastes in an environmentally sound manner (2) preventing dumping of waste which is hazardous to the public health and environment. A note on the status of asbestos/asbestos waste is enclosed. PCBs are banned under the HW Rules of 1989. They are also banned under the Stockholm Convention on POPs and the Basel Convention. It is reiterated that export of ship for dismantling should be with prior informed consent. The procedure of such consent is known to MoEF, Pollution Control Boards and all the authority in the country. Even in the commercial transaction of import and export such procedures are followed. These are ordinary procedural aspects.

It is not safe and is against all international norms, against the principals of sovereignty that any ship without decontamination and prior informed consent is allowed to enter in the territory of our country. The procedure for filing application for anchoring, beaching and subsequently an appeal are all procedures which violate the directions of this Hon’ble Court in 2003.


The Blue lady is an example of such an illegality, which should not be allowed to get into the system. Our country should not depart from the procedure, which is followed by all other countries who are members of Basel Convention.

SEPTEMBER, 2007

Save us from toxic Blue Lady

Villagers near Alang ship breaking yard say dismantling of the contaminated ship poses grave danger to their health, livelihood; they will reapproach SC, which had given the go-ahead for it

Posted On Friday, September 28, 2007

PTI

Bhavnagar (Gujarat): More than 30,000 villagers in this district in Gujarat are up in arms against the Supreme Court order allowing dismantling of the contaminated Norwegian ship Blue Lady. The apex court in its recent order had cleared the decks for breaking the controversial ship anchored on the state coast since 2005.

However, this has not gone down well with the villagers who alleged that its dismantling in the vicinity of their villages would adversely affect their livelihood and health.Bhagvatsinh Haubha Gohil, sarpanch of Sosiya in Talaja tehsil, said an application was filed in the Supreme Court in March this year on behalf of 12 sarpanchs and 30,000 people living in the vicinity of the ship-breaking yard at Alang. “We are upset that our plea on the crucial issue has not been considered. “The ship-breaking would have a long-lasting impact on the health of the villagers as they will be exposed to the hazardous material in the ship.” Also, the toxic materials would affect seafood, the main source of livelihood for the villagers, he added.

Taking up cudgel on behalf of these villagers, Indian Platform on Ship-breaking, said, “The ship still has radioactive material at 1088 places. “We would file a review petition challenging the apex court.” The ship containing toxic asbestos material was anchored on the Gujarat coast on December 26, 2005, following objections from certain environmental groups that the ship would pose serious health problems to the workers engaged in the ship-breaking industry.

India, a victim of waste colonialism

Even before the verdict of the Supreme Court of India in the matter of this heavily contaminated ship named Blue Lady (SS Norway, SS France) was pronounced, the European precedent of upholding the environment and occupational health rights set by the recall of the French ship, Le Clemenceau was dismantled by the deafening silence of Germany and Malaysia even as several international environmental and labour laws were intentionally mutilated and violated in full public view with impunity.

It all began with a Boiler Explosion on toxics laden ship named SS Norway, owned by multinational company Norwegian Cruise Lines (NCL) of Star Cruise Ltd at Miami, US in 2003 that made it a dead ship. Thereafter it came to German port of Bremerhaven. It may be noted that the owner of the ship was indicted of Environmental Crime by US Justice Department. Newly discovered evidence confirm that as far back as 2004, the owners of the SS Norway had decided to dispose of the vessel but it misled German authorities by declaring that the vessel was going to Asia for re-use. The departure of the SS Norway (now SS Blue Lady, ex SS France) from the port of Bremerhaven, Germany on May 23, 2005, triggered a continuing criminal offense that persists to this day.

Under the Basel Convention and its Basel Ban Amendment, and European Union law, Germany is prohibited from disposing of the SS Norway by exporting it to any country outside of the European Union and to country not members of the Organization for Economic Cooperation and Development, 30 of the most industrialized nations in the world, without decontaminating the vessel of all the toxic wastes onboard.

The ship left the German port and came to Malaysia for refurbishment and conversion into a hotel or training ship. On 5th May, 2006, the ship left Malaysia for Dubai by informing the Malaysian authorities that it is going for repairs. In January 2006, the ship was sold to Bridgend Shipping Ltd, Monorovia, Liberia at a price of 10 Dollars. It was at this stage that the ship was once again renamed SS Blue Lady. After after Bangladesh refused entry to this ship in February, 2006, Hariyana Ship Demolitions Pvt Ltd bought the ship from Bridgend Shipping Ltd and started moving towards Indian territorial waters without permission when the matter was brought to the notice of the apex court it sought anchorage permission through Prodipto Ghosh, the then Union Environment Secretary on humanitarian grounds in May 2006. The court gave the permission on 5th June, 2006with no equity on the owners but the ship vanished for 25 days and came back to anchor 30 June, 2006. Subsequently, although the permission was only for anchoring, Ghosh in consultation with Gopal Subramaniam, Additional Solicitor General allowed the ship to beach on 15th August, 2006. Thereafter, the Technical Experts Committee headed by Ghosh started arguing that beaching is an irreversible process in its final report submitted to the Court on 30th August 2006.

Curiously, the final report of the Committee headed by Ghosh did not disclose to the court that on 31 July 2006, one Priya Blue Industries Pvt Ltd has written a letter to Gujarat Maritime Board (GMB) claiming itself to be “new buyers of the above vessel”. It may be noted that all earlier processes were based on the ownership claim of Hariyana Ship Demolitions Pvt Ltd, Priya Blue was never in picture; it is not made clear when it purchased the ship. No purchase document or proof of ownership of the ship has been presented till date.

Unmindful of these evident misleading and cunning machinations, the 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."

It is noteworthy that there were two judgments in this case dated 6 September 2007 and 11 September, 2007 in the Writ Petition (Civil) 657 of 1995 in the matter of Hazardous Wastes/Ship-breaking/Blue Lady. The Division Bench of Justice Dr. Arijit Pasayat and Justice S. H. Kapadia delivered both the orders. The same Bench was seized with Le Clemenceau case. The first order is a general order on the issue of ship-breaking. The second order is with specific reference to Blue Lady (SS Norway). This order gave a go ahead to dismantling of a asbestos and radioactive material laden ship named Blue Lady, which has been dumped in Indian waters.

September 6, 2007 order establishes that it is not in dispute that the entry of Blue Lady in Indian territorial waters and continued presence since June 2006 is in violation of Court’s order of 14th October, 2003, Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal, Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade, Stockholm Convention on POPs and International Labour Organisation (ILO)'s Radiation Protection Convention, 1960. India is signatory to these international environmental and labour laws.

Exposing these mostly Bhojpuri and Oriya speaking causal and migrant workers and the villagers of Bhavnagar panchayats to all kinds of toxic exposures and threatening their source of livelihood i.e. fishing due to marine pollution has become a routine affair and a vulture story for the entire global and Indian media. By Government's own admission the underground water in Alang is heavily polluted, ship-breaking industry is known to have worse accident rate (2 workers per 1000) than the mining industry (0.34 per 1000) which is considered the worst in the world and 16 % of workers here are suffering asbestos related diseases.

The relevant part of the 11 September order refers to former 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."

Reading through the 21-page keynote address of Lord Goldsmith published in Stanford Law Review one came across the paragraph that has been referred to in the court 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 29which 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 the speech in question is not at all relevant to the plight of workers, villagers, environment, ship-breaking industry, Steel or Hazardous Wastes Management. Therefore, it does not appear to be a convincing rationale for knowingly letting the most vulnerable workforce and communities suffer from asbestos exposure.

By order dated 11/9/2007 this Division Bench of the Hon’ble Supreme Court of India granted permission for the dismantling of the ship Blue Lady at Alang, Gujarat based on the submission by Gopal Subramaniam, Additional Solicitor General to the effect that the ship does not have any more radioactive material and beaching is irreversible.

Contrary to the recommendations of the Technical Experts Committee, Gujarat Pollution Control Board, Gujarat Enviro Protection and Infrastructure Ltd (GEPIL) and the Priya Blue Shipping Pvt Ltd, the petitioner pointed out to the Court that the ship contained radioactive substances at thousands of places. But in the order passed by the Hon’ble Supreme Court it is merely stated, “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”.

In this regard it may be pertinent to state that the petitioner had referred to a letter sent by one Mr 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) stating therein that the fire detection system on the Blue Lady contained 5500 detection points and had 1100 radioactive elements, Americium 241. However, a perusal of the aforementioned report of the inspection undertaken on 14.8.2007 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”.

No mention is made as regards the balance 1088 smoke detectors containing Americium 241. In a letter to the Prime Minister dated 19th September, 2007, Haugen has reiterated the fact about enormity of radioactive material on the ship given the fact that he himself supervised its installation.

The Court has been misled into going only on the aspect concerning asbestos and has accepted that 85 % of the asbestos is contained in the form of wall partitions, ceilings and the roofing in rooms and galleries and if removed without damaging them, they would be reusable. Firstly, no mention seems to have been made as regards the balance 15 % of the asbestos contained on the Blue Lady, which in itself would come to 186 MT of asbestos-the only assumption that one could draw from the same is that the removal of this 186 MT of asbestos is bound to cause asbestosis, Mesothelioma, Lung Cancer and other related illnesses.

The Court was misled by the ingenious arguments (curiously advanced by the Learned Additional Solicitor General) that “in the present case, the vessel does not contain single kilogram of asbestos and/or ACM as cargo”, though it had never been the stand of the petitioner that asbestos or Asbestos Containing Material (ACM) was being sought to be brought in as cargo.

It is interesting to note that in the observations/recommendations made in the 29th Report of the Committee on Petitions (14th Lok Sabha), dated 17.8.2007 it has been submitted that “the committee are extremely are 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. In case the asbestos fibers are inhaled or the PCBs are consumed by humans beings, the same may cause cancer unless proper precautions are taken for safe handling of these materials by the workers. The committee strongly deprecate 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.” The Environment Ministry gave oral evidence before the Committee but did not disclose the radioactive content of the ship.

The petitioner brought to the notice of the Court that asbestos waste is banned in India and Asbestos is banned in some 45 countries and even World Trade Organisation has 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 but the Additional Solicitor General misinformed the court about its safe use and re-use. Gopal Subramaniam, Additional Solicitor General, an opponent of Citizen's Right to Information argued that asbestos is safe for Indians. Therefore, compensation for asbestos victims is not possible. He justified Hazardous Waste
Dumping in India because asbestos waste in structure is not hazardous arguing that asbestos waste is banned in India but that applies to 'virgin' asbestos!! He misled the Court by persuading it to rely on an unreliable report of Prodipto Ghosh, Chairman Technical Experts Committee on Hazardous Wastes relating to Ship-breaking, which had submitted that there is no radioactive material on the ship. Subramaniam was compelled to partially admit the presence of radioactive material on Blue Lady but showed his characteristic disrespect for truth. Consequently, the court has not clarified whether ‘ban on asbestos waste’ rule has been violated and if not then where will it apply if not in this case.

Allen Todd Busch, Vice President & General Manager, Titan Salvage, a Crowley Company one of the largest and most respected salvage companies operating has written to the Prime Minister saying, “the primary reason the court has ruled in favor 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. This is not the case. We have 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.” Also as per the Technical Report from Aaage Anderson (Memo on Refloating Blue Lady) who was involved in the Le Clemenceau case, the ship in question can be refloated.

The Court has not considered a very crucial contention raised by the petitioner with regard to “Prior Informed Consent” which has been accepted in the Rio Declaration, Basel Convention, Cartegena Protocol, Rotterdam Convention, Stockholm Convention etc-this principle has also been incorporated in Hazardous Wastes Rules 1989. As per the principle no member state can send hazardous waste to a developing country without its prior consent. Another important aspect raised by the petitioner has been given a complete go by namely, that a ship ought to be decontaminated prior to its export for dismantling (which view was expressed by the Hon’ble court in its earlier judgement of 14.10.2003 and reiterated in 6.9. 2007 order).

Apart from the above, the petitioner had also raised apprehension regarding the security aspect and the violations thereof with regard to the entry of the ship in the Indian territorial waters-that despite the ship purchaser having obtained an order permitting anchoring in Indian territorial waters on humanitarian grounds, the ship was taken to Dubai for 25 days and thereafter brought back to India. Despite the petitioner expressing his apprehensions regarding the implication of the above action as also bringing to the notice of the court a Naval Intelligence report that the mafia was involved in the ship-breaking activities in India and that the same coupled with the fact that the Blue Lady (despite allegedly being a ship which on dismantling would yield 41, 000 MT of Steel and provide employment to 700 workmen) was sold for a paltry sum of 10 dollars to the purchaser, no attention has been focused on this aspect.

Even as it was becoming clearer that the Blue Lady (SS Norway, SS France) can be sent back, the Additional Solicitor General misled the court into believing that since beaching is irreversible, Blue Lady cannot be sent back. The ship in question is in illegal traffic as per all relevant laws in the Rule Book. 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.

It is quite sad and disappointing that the Hon’ble Supreme Court has not 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 have filed the case through their heads of village councils (Sarpanch) in the Supreme Court. These villages are in the vicinity of Alang ship-breaking yard. They have 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."

An acclaimed scientist, a former Union Minister, Prof M.G.K. Menon, wrote to Chief Justice of India as Chairman, Supreme Court’s High Power Committee on Hazardous Wastes seeking compliance with Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal in Blue Lady matter and argued that it should be sent back to Malaysia or Germany from where it came without decontamination.

Following oral evidence from Ministry of Environment & Forests, Prabhunath Singh, Chairman, Parliamentary Petitions Committee deprecated the repeated stand taken by Environment Ministry on Blue Lady that since no hazardous wastes has been allowed on board as cargo, there is no violation of Supreme Court directions in a report to tabled in the Lok Sabha on 22 August, 2007 in response to a petition raised by Basudev Acharya, senior parliamentarian arguing that Blue Lady's entry in our territory violates India's sovereignty. Earlier Kalraj Mishra, Member, Parliamentary Committee on Industry had demanded that Blue Lady is 50 times more toxic than the French ship Le Clemenceau that was sent back, therefore, it should be sent back.

Dismantling of Blue Lady would set a very bad precedent for it seems contrary to established Prior Informed Consent Procedure given the fact that the court is yet to hear the application on the issue of asbestos exposure to these villagers in Alang, the scrapping of Riky and whether or not Blue Lady has complied with the Supreme Court order of 14th October, 2003 and September 6, 2007. In effect, Justice Arijit Pasayat has ruled that Contaminated Ships are banned but Blue Lady (SS Norway) is irreversible and Justice S H Kapadia implied that although Blue Lady beached illegally in Alang since beaching is irreversible so accept the fait accompli!

In any case hazardous and poisonous material does not become non-hazardous and non–poisonous because the Environment Ministry and Additional Solicitor General thinks so. While the verdict illustrates the priority the India’s apex court accords to human life and environment, it also exposes European position on ship-breaking and asbestos. Has European laws changed after toxic ship Le Clemenceu was recalled due to a verdict by French court?. Germany allowed violation of Basel Convention by permitting illegal traffic of Star Cruise's 45 years old ship.

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 rather than on legal basis. More specifically it is a case of ship owners successfully escaping exorbitant decontamination cost in Europe. It drives home a message as to how globalisation of waste takes place and how waste colonies are established both within the countries and across the countries to keep harmful materials away from the rich with the help of either indulgent or gullible government servants.

World Bank Group under Scanner for Asbestos use in India

People's Tribunal on World Bank takes note of Asbestos Hazards

New Delhi, 25/9/2007: On the final day of Independent Peoples Tribunal (IPT) on the World Bank Group (WBG), it was presented with evidence of Bank’s own officials suggesting how it finances huge infrastructure projects all over the world including India despite this there is no formal restrictions on the use of asbestos-cement (A-C) sheets and pipes in these projects. Over 90 percent of all asbestos used today is in A-C sheets and pipes, and this production is concentrated in poor countries. Ban Asbestos Network of India (BANI) called for urgent action in India and elsewhere to end the needless slaughter caused by this environmental and occupational health catastrophe.

The IPT heard the testimonies on Toxics and the role of WBG wherein it was alleged, 'The Bank is perpetrating toxic colonialism by funding discredited and polluting technology interventions'. The 4-day IPT was held from 21 –24 September at Jawaharlal Nehru University, New Delhi.

Asbestos is a proven human carcinogen (a substance which can cause cancer). No safe level can be proposed for asbestos products because there is no threshold of exposure which is not safe. Asbestos accumulates in the body; the microscopic fibers which lodge in tissues are time bombs that can cause cancer years later. Since asbestos exposure is cumulative, young people are in particular need of protection. The World Health Organization (WHO), the International Labor Organization (ILO), and the International Social Security Association (ISSA) have all called for a global ban on asbestos use.

Despite this, asbestos consumption is rising dramatically in India. The International Program on Chemical Safety has condemned the use of asbestos in construction materials as especially dangerous because of the large number of workers in construction and the extreme difficulty of protecting them. The continuing usage of these materials constitutes a danger to workers manufacturing the products and communities exposed to wastes and air pollution from manufacturing and construction sites. The buildings and pipelines installed today will pose dangers for future generations of people in the countries where they are used, if they contain asbestos. Asbestos is processed through various methods and used for making cement products, gasket sheet material, friction material, heat resistant textiles, some special applications like in paints, thermoplastics etc. In addition it is used for textiles, laminated products, tape, gland packing, packing ropes, brake lining and jointing used in core sector industries such as automobile, heavy equipment, petro-chemicals, nuclear power plants, fertilizers, thermal power plants, transportation, defense and railways. It is used in manufacture of asbestos cement roofs, pressure and non-pressure pipes, sewage, irrigation and drainage system in urban and rural areas etc.

All forms of asbestos except Chrysotile Asbestos is banned in India. Mining of asbestos is also banned since no new lease for asbestos mining is allowed. The export and import of asbestos waste (dust and fiber) is also banned as per Hazardous Waste (Management & Handling) Rules, 2003. But import of Chrysotile asbestos is still allowed despite ban in some 40 countries due to incurable but preventable cancer caused by this killer fiber in the name of its continued mythical “safe and controlled use”. Asbestos-related diseases constitute the largest occupational epidemic of the 20th century; this global scourge has been acknowledged by reputed medical journals like the British Medical Journal (January 31, 2004).

Despite this knowledge, no attempt has been made to quantify the total number of asbestos victims in India despite the national asbestos crisis. While asbestos imports and use continues to grow in countries like India, its use has decreased significantly in developed countries. Canada exports almost all of the asbestos (more than 96%) mined in the country, especially to Asia, including India, whereas asbestos use in Canada is almost non-existent. In the US, demand for asbestos has continued to decline and a Ban Asbestos Act is on the Congressional agenda. The developed world has responded to the asbestos health catastrophe with bans on the use of asbestos. On the contrary, asbestos use is expanding in India and the government actively colludes with the asbestos industry by instituting pro-asbestos measures such as the reduction of taxes on asbestos imports. The reduction of import duty reduces the cost of asbestos and thereby gives harmful asbestos-containing products a price advantage over safer materials.

Although the Supreme Court of India has directed Union and State Governments to take action consistent with ILO resolutions and the ILO Convention on Asbestos, Ministries in India have not taken action in pursuance of ILO’s Resolution on Asbestos dated 14th June, 2006 stating “the elimination of the future use of asbestos and the identification and proper management of asbestos currently in place are the most effective means to protect workers from asbestos exposures and to prevent future asbestos-related disease and deaths.”. Even if the use of asbestos products is discontinued there are and will be a massive number of victims from past asbestos exposures. This is what has happened elsewhere and there is no doubt the asbestos epidemics which have occurred in the US, Europe, Australia and Japan will be replicated in India and other asbestos consuming countries. Information revealing the dangers to human health of exposure to asbestos was available over 60 years ago. Despite the efforts of the asbestos industry to suppress negative findings, during the 20th century epidemiological studies and medical data conclusively proved the link between asbestos and a number of debilitating and fatal diseases.
In a written submission to the IPT, BANI demanded, “The World Bank should adopt a formal policy of forbidding asbestos in all of its projects and require the use of safer substitute construction materials. Such substitution is feasible as shown by the bans in more than 40 countries.. The World Bank should also adopt best practice guidelines for the minimization of asbestos exposures in projects where in-place asbestos materials are disturbed by renovation or demolition activities.” It has called upon the World Bank to support the asbestos action program just started by the WHO
(See:http://www.who.int/occupational_health/publications/asbestosrelateddiseases.pdf)
and use its influence and leverage to press for cessation of asbestos use all over world.
.
BANI drew attention of the jury towards the report of World Bank environmental official Robert Goodland, "Sustainable Development Sourcebook for the World Bank Group's Extractive Industries Review: Examining the Social and Environmental Impacts of Oil, Gas, and Mining" (3 December, 2003). Policy options for asbestos (p. 141) included, "5. The WBG should work with the rest of the UN system to foster a global ban on asbestos." Other policy recommendations were:
1. The WBG should not provide support for any asbestos-containing products, even indirectly, including through mining, manufacture, commerce and use. The rest of the WBG should follow the lead of IFC, which has put asbestos on its Exclusion List.
2. The WBG should actively assist with the safe removal and disposal of asbestos, and adopt a best practice demolition code.
3. The WBG should support asbestos manufacturers in developing countries to
switch out of asbestos-containing products and into less risky products.
4. The WBG should support victims of asbestos exposure, including litigation for compensation of victims, and/or the creation of a financial compensation mechanism akin to the mechanism being explored in the case of toxic mine waste and the toxic lagoon legacy issue taken up by the Extractive Industry Review (See eireview.net).

The World Bank Group must explain why it has not taken the recommended actions.

Blue Lady has 1240 MT of asbestos & radioactive Material at 1088 Places

Asbestos, PCB & Lead laden Blue Lady is Reversible even after beaching

New Delhi: By order dated 11/9/2007 a Division Bench of the Hon’ble Supreme Court of India (comprising Dr Justice Arijit Pasayat and Hon’ble Mr Justice S H Kapadia) granted permission for the dismantling of the ship Blue Lady at Alang, Gujarat based on the submission by Gopal Subramaniam, Additional Solicitor General to the effect that the ship does not have any more radioactive material and beaching is irreversible.

Contrary to the recommendations of the Technical Experts Committee, Gujarat Pollution Control Board, Gujarat Enviro Protection and Infrastructure Ltd (GEPIL) and the Priya Blue Shipping Pvt Ltd, the petitioner pointed out to the Court that the ship contained radioactive substances at thousands of places. But in the order passed by the Hon’ble Supreme Court it is merely stated, “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 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”.

In this regard it may be pertinent to state that the petitioner had referred to a letter sent by one Mr 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) stating therein that the fire detection system on the Blue Lady contained 5500 detection points and had 1100 radioactive elements, Americium 241. However, a perusal of the aforementioned report of the inspection undertaken on 14.8.2007 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”.

No mention is made as regards the balance 1088 smoke detectors containing Americium 241. In a letter to the Prime Minister dated 19th September, 2007, Haugen has reiterated the fact about enormity of radioactive material given the fact that he himself supervised its installation.

The Court has been misled into going only on the aspect concerning asbestos and has accepted that 85 % of the asbestos is contained in the form of wall partitions, ceilings and the roofing in rooms and galleries and if removed without damaging them, they would be reusable. Firstly, no mention seems to have been made as regards the balance 15 % of the asbestos contained on the Blue Lady, which in itself would come to 186 MT of asbestos-the only assumption that one could draw from the same is that the removal of this 186 MT of asbestos is bound to cause asbestosis, Mesothelioma, Lung Cancer and other related illnesses.

The Court was misled by the ingenious arguments (curiously advanced by the Learned Additional Solicitor General) that “in the present case, the vessel does not contain single kilogram of asbestos and/or ACM as cargo”, though it had never been the stand of the petitioner that asbestos or Asbestos Containing Material (ACM) was being sought to be brought in as cargo. It is interesting to note that in the observations/recommendations made in the 29th Report of the Committee on Petitions (14th Lok Sabha), dated 17.8.2007 it has been submitted that “the committee are extremely are 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. In case the asbestos fibers are inhaled or the PCBs are consumed by humans beings, the same may cause cancer unless proper precautions are taken for safe handling of these materials by the workers. The committee strongly deprecate 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.” The Environment Ministry gave oral evidence before the Committee but did not disclose the radioactive content of the ship.

The petitioner brought to the notice of the Court that asbestos waste is banned in India and Asbestos is banned in some 45 countries and even World Trade Organisation has 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 but the Additional Solicitor General misinformed the court about its safe use and re-use. It hs been submitted that Rule 12 (i) of the Hazardous Wastes (Management and Handling) Rules under the Environment Protection Act, 1986 bans import of asbestos. As per Schedule 8 Serial No. 15 describes waste asbestos (dust and fibres) as hazardous wastes prohibited for import and export. The court has not clarified whether or not this Rule has been violated and if not then where will it apply if not in this case.

Allen Todd Busch, Vice President & General Manager, Titan Salvage, a Crowley Company one of the largest and most respected salvage companies operating has written to the Prime Minister saying, “the primary reason the court has ruled in favor 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. This is not the case. We have 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.” Also as per the Technical Report from Aaage Anderson (Memo on Refloating Blue Lady) who was involved in the Le Clemenceau case, the ship in question can be refloated.

The Court has not considered a very crucial contention raised by the petitioner with regard to “Prior Informed Consent” which has been accepted in the Rio Declaration, Basel Convention, Cartegena Protocol, Rotterdam Convention, Stockholm Convention etc-this principle has also been incorporated in Hazardous Wastes Rules 1989. As per the principle no member state can send hazardous waste to a developing country without its prior consent. Another important aspect raised by the petitioner has been given a complete go by namely, that a ship ought to be decontaminated prior to its export for dismantling (which view was expressed by the Hon’ble court in its earlier judgement of 14.10.2003 and reiterated in 6.9. 2007 order).

Apart from the above, the petitioner had also raised apprehension regarding the security aspect and the violations thereof with regard to the entry of the ship in the Indian territorial waters-that despite the ship purchaser having obtained an order permitting anchoring in Indian territorial waters on humanitarian grounds, the ship was taken to Dubai for 25 days and thereafter brought back to India. Despite the petitioner expressing his apprehensions regarding the implication of the above action as also bringing to the notice of the court a Naval Intelligence report that the mafia was involved in the ship-breaking activities in India and that the same coupled with the fact that the Blue Lady (despite allegedly being a ship which on dismantling would yield 41, 000 MT of Steel and provide employment to 700 workmen) was sold for a paltry sum of 10 dollars to the purchaser, no attention has been focused on this aspect.

Even as it was becoming clearer that the Blue Lady (SS Norway, SS France) can be sent back, the Additional Solicitor General misled the court into believing that since beaching is irreversible Blue Lady cannot be sent back. It may be noted that Blue Lady ship was granted anchoring permission at the request of Rajeev Reniwal, Hariyana Ship Demolitions Pvt Ltd, Sosiya Ship-breaking yard, Bhavnagar, Gujarat on humanitarian grounds on 5 June, 2006. Hariyana Ship Demolitions Pvt Ltd had bought the ship Bridgend Shipping Ltd, Monorovia, Liberia. Bridgend Shipping Ltd had bought SS Norway from Norwegian Cruise Line Ltd, a wholly owned subsidiary of Star Cruise Lines Ltd in Januray 2006 . It was at this stage that the ship was once again renamed SS Blue Lady. The ship in question is in illegal traffic as Basel Convention. 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.

It is quite sad and disappointing that the Hon’ble Supreme Court has not 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 have filed the case through their heads of village councils (Sarpanch) in the Supreme Court. These villages are in the vicinity of Alang ship-breaking yard. They have 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." Dismantling of Blue Lady would set a very bad precedent for it seems contrary to established Prior Informed Consent Procedure given the fact that the court is yet to hear the application on the issue of asbestos exposure to these villagers in Alang, the scrapping of Riky and whether or not Blue Lady has complied with the Supreme Court order of 14th October, 2003 and September 6, 2007.

Press Invite for Blue Lady (SS Norway) Conference on 20 September

Press Invite

Attention: News Editor / Chief Reporter

The Indian Platform on Ship-breaking -a coalition of Geenpeace, Ban Asbestos Network of India (BANI), Corporate Accountability Desk, Basel Action Network and other human, labour and environment rights organizations invites you to a press conference on 20th September, 2007 at Asia Foreign Correspondents Cub. The conference would be on the issue of environmental and occupational health in Ship-breaking yard in Alang, Bhavnagar Gujarat in the wake of the Supreme Court order on Hazardous Wastes/ Ship-breaking/Blue Lady (SS Norway, SS France).

Date: 20 September, 2007
Time: 1 PM
Venue: Asia Foreign Correspondents Cub
AB-19, Mathura Road [Opposite Pragati Maidan Gate No.7]
New Delhi-110 001


RSVP:
Mb: 9818089660 E-mail-krishnagreen@gmail.com

Sacrificing 700 Workers, 30, 000 villagers, their Livelihood & Environment for 41, 000 Tonnes of Blue Lady's Steel

The concept of "balance" under the principle of proportionality applicable in the case of sustainable development is lucidly explained by Pasayat, J. in the judgment
of this Court in the case of T.N. Godavarman Thirumalpad v. Union of India and Ors. reported in (2002) 10 SCC 606 vide para 35 which reads as under:

"35. 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."

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.

This order gave a go ahead to dismantling of a asbestos and radioactive material laden ship named Blue Lady, which has been dumped in Indian waters.

The above para is quoted in the September 11, 2007 order of the Supreme Court of India in the matter of Blue Lady ship.

PLEASE CHECK WHETHER THE RELEVANT PARAGRAPH OF KEYNOTE ADDRESS BY LORD GOLDSMITH PUBLISHED IN STANFORD LAW REVIEW IS REALLY PERTINENT

"The third principle is that of proportionality. One of the key themes of theECHR is the concept of balance. The Convention took its lead in this respectfrom the Universal Declaration of Human Rights—and in particular, article 29which 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."

Given below is the order:

CASE NO.:
Writ Petition (civil) 657 of 1995

PETITIONER:
Research Foundation for Science Technology and Natural Resource Policy

RESPONDENT:
Union of India and Others

DATE OF JUDGMENT: 11/09/2007

BENCH:
Dr. Arijit Pasayat & S. H. Kapadia

JUDGMENT:

JUDGMENT

O R D E R
I.A. No. 34 of 2006 IN WRIT PETITION (CIVIL) NO. 657 OF 1995
S.H. Kapadia, J.

A short question which arises for determination in this IA is whether
this Court should grant permission for dismantling of the ship "Blue Lady"
at Alang, Gujarat.

2. The "Blue Lady" ex SS Norway was a passenger liner built at Chantier De Altantic, St. Nazaire, France in 1961. It was a steam turbine driven vessel with a power and rating of 30,000 KW and 40,760 HP respectively. Now the vessel is registered as a Barge under the flag of Bahamas vide official number 710763. The vessel is very luxurious in it's kind and many dignitaries like President of America, Queen of England have travelled during it's golden period. The said ship was beached on 15/16.8.2006 off the Alang coast. The said ship was the passenger ship. It was constructed in 1952. It originated from France. Its last origin was from Norway. The ship is about 291 mt. long. It is 34 mt. wide. It has the capacity of 45886 MT. It has 16 floors. It has 1400 rooms for passengers accommodation. It has restaurant, cinema, health club and free shopping
complex.
3. Alang is located on the west coast of Gujarat. It is the largest ship recycling yard in the world. It is one of the choicest ship-scrapping destination for the ship owners around the world. There are 183 plots in all to carry out the ship recycling activities. Till today Alang has provided approximately 23 million tonnes of steel in the last 10 years. On 17.2.2006 when the above writ petition came up for hearing before this Court, we found the controversy concerning ship-breaking a recurring controversy. Therefore, this Court decided to lay down norms concerning infrastructure, capacity of Alang to handle large volume of ship-breaking activity,
safeguards to be provided to the workers who were likely to face health-hazard on account of the incidence of ship-breaking activity, the environmental impact assessment, regulation of the said activity and strict regulation of the said activity. Accordingly, this Court constituted a Committee of Technical Experts to submit a report on the aforestated aspects.

4. We quote herein below the said order dated 17.2.2006: "It is brought to our notice that the ship Clemenceau has been directed to be taken back to France. Therefore, immediate controversy relating to Clemenceau ship seems to be over. But the problem is a recurring one. First and foremost requirement as of today is to find out the infrastructural stability and adequacy of the ship breaking yard at Alang. It has to be found out whether the same are operational/operating in a way that environmental hazards and pollution are avoided and/or equipped to meet the requirements in that regard. For that purpose, it is necessary to constitute a Committee of technical experts who can, after obtaining views and inviting suggestions from those who would like to give them to find out whether the infrastructure as existing at Alang presently is adequate. If according to the Committee, it is not adequate it shall indicate the deficiencies, and shall also suggest remedial measures to upgrade the infrastructural facilities. For this purpose, Union of India shall, as early as practicable, constitute a Committee of technical experts, some of them having Navy background, preferably retired officers. The Committee shall submit its report to this Court within eight weeks. The expenses of the Committee shall be met by the Ministry of Environment and Forests. Since at various points of time various guidelines have been indicated, it would be appropriate if they are properly
codified to be followed scrupulously by all concerned including the Government authorities."

5. In continuation of the said order dated 17.2.2006 a further order was passed by this Court on 12.3.2007 calling for a further report by TEC in which this Court directed inclusion of Gujarat Maritime Board (GMB) and Gujarat Pollution Control Board (GPCB) to assist this Court on three aspects, namely, pre-conditions to be satisfied by the recycler for dismantling and reusability of 80% of the asbestos. This Court also sought assistance of various authorities, including the petitioner herein, on steps to be taken to control the environmental impact of asbestos dust likely to be generated in the process of dismantling. We quote hereinbelow the said
order in extenso:

"Having heard learned counsel for the parties, we are of the view that a further report by the T.E.C. is required to indicate as to whether
conditions stipulated have been complied with before any action can be taken on the dismantling plan. Let the applicant in I.A. No.34 place materials before T.E.C. as to how and in what manner compliance
has been done. While deciding the acceptability of the stand of the applicant, the T.E.C. shall involve the Gujarat Maritime Board and the Gujarat Pollution Control Board and take note of their views. In the report apart from examining the general compliance of the conditions, specific focus has to be drawn on three particular aspects, namely,
(a) whether pre-conditions for dismantling have been complied with; (b) whether 80% of the asbestos is reusable as is contended by the applicant; (c) what steps have been taken to control the environmental impact of asbestos dust generated in the process of dismantling. The T.E.C. shall also suggest as to which agency shall oversee and monitor the dismantling in case it recommends acceptance of the dismantling plan. The report shall be submitted within six weeks. The other aspects relating to the reversibility or impermissibility of the beaching, manner of dealing with hazardous from asbestos and other hazardous material shall be considered after the
receipt of the report from the T.E.C. The T.E.C. which was constituted pursuant to the order of this court having submitted its report is stated to have become functus officio shall examine the matter as
directed."

6. Ultimately, the TEC submitted its report on the aforestated aspects on 10.5.2007. That report has been accepted by this Court vide order dated 6.9.2007 in writ petition no. 657/95 etc.. We accepted that report mainly because it is all pervasive. It contains opinions of experts including retired navel officers. It indicates State-of-the-Art mechanism to regulate removal of asbestos. The report clarifies that "beaching" is an irreversible process. TEC has also examined the recycling plan and the dismantling plan submitted by the recycler. Apart from the GMB and GPCB, various other authorities like Gujarat Enviro Protection & Infrastructure Ltd. (GEPIL)
have also contributed their knowledge and expertise in the preparation of the
report dated 10.5.2007. There was also an apprehension rightly expressed by
the petitioner regarding radio active 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 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 radio active material on board the ship.

7. By the said report dated 10.5.2007, which has been accepted by us
vide order dated 6.9.2007, TEC has also recommended grant of permission
for dismantling of the ship "Blue Lady" at Alang (Gujarat) in accordance
with the recycling plan submitted by M/s Priya Blue Industries Pvt. Ltd.
(recycler). Under the said report, TEC has stated that regular monitoring of
the ship-breaking operations of Blue Lady shall be undertaken by the
competent authority mentioned in the report so as to ensure strict compliance
with the guidelines given by TEC in respect of safety and health of the
workmen and environment. At this stage, we may mention that breaking of
the vessel Blue Lady will provide to this country 41000 MT of steel and it
would give employment to 700 workmen.

8. 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.

9. In the case of Research Foundation for Science Technology National Resource Policy v. Union of India and anr. (2005) 10 SCC 510 a Division Bench of this Court has held that "precautionary principle" is a part of the concept of sustainable development. We quote hereinbelow paragraphs 16 and 43 of the said judgment, which are as follows:

"16. The legal position regarding applicability of the precautionary principle and polluter-pays principle which are part of the concept of sustainable development in our country is now well settled. In Vellore Citizens' Welfare Forum v. Union of India (1996) 5 SCC 647 a three-Judge Bench of this Court, after referring to the principles
evolved in various international conferences and to the concept of "sustainable development", inter alia, held that the precautionary principle and polluter-pays
principle have now emerged and govern the law in our country, as is clear from Articles 47, 48-A and 51-A( g ) of our Constitution and that, in fact, in the various
environmental statutes including the Environment (Protection) Act, 1986, these concepts are already implied. These principles have been held to have become part of our law. Further, it was observed in Vellore Citizens' Welfare Forum case that these principles are accepted as part of the customary international law and hence there should be no difficulty in accepting them as part of our domestic law. Reference may also be made to the decision in the case of A.P. Pollution Control Board v. Prof. M.V. Nayudu (1999) 2 SCC 718 where, after referring to the principles noticed in Vellore Citizens'
Welfare Forum case the same have been explained in more detail with a view to enable the courts and the tribunals or environmental authorities to properly apply
the said principles in the matters which come before them. In this decision, it has also been observed that the principle of good governance is an accepted principle of
international and domestic laws. It comprises of the rule of law, effective State institutions, transparency and accountability and public affairs, respect for human
rights and the meaningful participation of citizens in the political process of their countries and in the decisions affecting their lives. Reference has also been made to
Article 7 of the draft approved by the Working Group of the International Law Commission in 1996 on "Prevention of Transboundary Damage from Hazardous
Activities" to include the need for the State to take necessary "legislative, administrative and other actions" to implement the duty of prevention of environmental harm. Environmental concerns have been placed on the
same pedestal as human rights concerns, both being traced to Article 21 of the Constitution. It is the duty of this Court to render justice by taking all aspects into consideration. It has also been observed that with a view to ensure that there is neither danger to the environment nor to the ecology and, at the same time, ensuring sustainable development, the court can refer scientific and technical aspects for an investigation and opinion to expert bodies. The provisions of a covenant which elucidate and go to effectuate the fundamental rights guaranteed by our Constitution, can be relied upon by courts as facets of those fundamental rights and hence enforceable as such (see People's Union for Civil Liberties v. Union of India (1997) 3 SCC 433. The Basel Convention, it cannot be doubted, effectuates the
fundamental rights guaranteed under Article 21. The right to information and community participation for protection of environment and human health is also a
right which flows from Article 21. The Government and authorities have, thus to motivate the public participation. These well-enshrined principles have been kept in view by us while examining and determining various aspects and facets of the problems in issue and the permissible remedies.

xxx

43. Another aspect which deserves to be noticed is about the effect of ship-breaking activity covered by TOR (14). We are not suggesting discontinuing of ship- breaking activity but it deserves to be strictly and properly regulated. When the ship arrives at a port for breaking, the authorities concerned have to be vigilant about the hazardous waste which may be generated if appropriate timely action by various agencies, in particular, the Maritime Board and SPCB are not taken. The major ship-breaking activity in India is at Alang in the State of Gujarat and, therefore, the Gujarat Maritime Board and Gujarat SPCB have to be alive to the consequences of the appropriate steps to be taken before the breaking activities start. According to the recommendations of HPC, the Inter-Ministerial Committee comprising Ministry of Surface Transport, Ministry of Steel, Ministry of Labour and Ministry of
Environment should be constituted with the involvement of labour and environment organisations and representatives of the ship-breaking industries.
(emphais supplied)
10. The concept of "balance" under the principle of proportionality applicable in the case of sustainable development is lucidly explained by Pasayat, J. in the judgment of this Court in the case of T.N. Godavarman Thirumalpad v. Union of India and Ors. reported in (2002) 10 SCC 606 vide para 35 which reads as under: "35. 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 above paragraphs indicate that while applying the concept of "sustainable development" one has to keep in mind the "principle of proportionality" based on the concept of balance. It is an exercise in which we have to balance the priorities of development on one hand and environmental protection on the other hand.

11. India after globalization is an emergent economy along with Brazil, Russia and China. India has economic growth of above 9%. However, that growth is lop-sided. A large section of the population lives below poverty line. India has largest number of youth in the world. Unemployment is endemic. Article 21/14 is the heart of the Chapter of fundamental rights. Equality of opportunity is the basic theme of Article 14. In an emergent economy, the principle of proportionality based on the concept of balance is
important. It provides level playing field to different stakeholders. Ship
breaking is an industry. When we apply the principle of sustainable development, we need to keep in mind the concept of development on one hand and the concepts like generation of revenue, employment and public interest on the other hand. This is where the principle of proportionality comes in. Even in the case of Blue Lady, the figures indicate that 700 workers would be employed in ship breaking. Further, 41000 MT of steel would be made available. To that extent, there will be less pressure on
mining activity elsewhere. Even in the judgment, referred to above, vide para 43, it has been observed that this Court is not in favour of discontinuance of ship-breaking activity. However, this Court has held that the said activity needs to be strictly and properly regulated. This concept of balancing is given importance by Dr. Amartya Sen in his book "Development as Freedom". Today ship-breaking provides resources not
only in terms of steel but also in terms of employment, skill and capability.
Competition exists in the said business of ship-breaking amongst Bangladesh, Pakistan and India. In our view, if "capability" is a resource with our skilled workers it needs to be protected by strict implementation of Health Hazard Preventive Measures suggested in the report of TEC and implementation of Recycling Plans, generation of pollutants like asbestos to the extent of 20% can be almost eliminated. As stated, 85% of asbestos is in form of ACM in panels which is reusable. Therefore, the report provides State-of-the-Art mechanism which is the key element of "sustainable
development".

12. One of the main objections raised on behalf of the petitioner was regarding non-quantification of two contaminants, namely, ACM and PCB (rubber). At this stage, we may clarify that ACM exists as material of construction in various vessel components like partitions, walls, ceilings etc. which are an integral part of the vessel structure. In the present case, the vessel does not contain single kilogram of asbestos and/or ACM as cargo. However, there is presence of ACM as "material of construction" in various vessel components like partitions, walls, ceiling etc.. Major quantity of ACM (85%) is in the partitions and ceilings of rooms and galleries. These
ACMs are in the panels. TEC, in its report, stated that recyclable material alone can be sold, therefore, PCB cannot be sold. The report further indicates that the quantity of PCB in the present case has to be dumped in land-fills. It is important to note that there are only two alternatives, namely, incineration or dumping PCB in land-fills. In both the cases, there is likelihood of pollution. As regards asbestos is concerned, we find that 85% is insulation and panels. This is where the dismantling plan has to be applied. It is this plan which takes care of the panels and insulation containing asbestos. Under section 3.3.2, the recycler was required to submit a dismantling plan containing requirements to be complied with. We quote
hereinbelow section 3.3.2 of the report of the Committee of Technical Experts on Ship Breaking Activities dated 30.8.2006: "3.3.2. Ship Specific Dismantling Plan:

Before starting the recycling process, the recycler should submit a Dismantling Plan to the authorities, which should include:

a) Details about the ship, and in particular, a fair assessment of hazardous wastes/hazardous materials.

b) Ship breaking schedules with sequence of work.

c) Operational work procedures.

d) Availability of material handling equipment and PPEs.

e) Plan for removal of oil and cleaning of tanks.

f) Hazardous waste handling and disposal plan.

g) 'Gas-free and fit for hot work' certificate issued by the Department of Explosives, or any competent agency authorized by the Department of Explosives.

h) Identification and marking of all non-breathable spaces by the Recycler.

i) Identification and marking of all places containing/likely to contain hazardous substances/hazardous wastes.

j) Confirmation to the effect that ballast water has been exchanged in the high seas. The tasks should address all the three phases of recycling, i.e.

i) Preparation phase.
ii) Dismantling phase.
iii) Waste stream management

k) Asbestos being a major area of concern, the scheme for removing asbestos, and asbestos containing materials (ACMs) on board, and on shore, should be specifically provided. The plan should include arrangements for handling, treatment and
disposal. Locations having asbestos/ACMs should be marked before commencing dismantling operations.

l) Systems and procedures to be followed to document and keep track of all hazardous waste generated during recycling, as well as hazardous substances found onboard the ship, and their transport to the disposal facility or registered recycling facility
should be provided."

13. The report dated 10.5.2007 of TEC states that the Dismantling Plan submitted by recycler in the case of Blue Lady complies with section 3.3.2. As stated above, the "precautionary principle" is embedded in the doctrine of sustainable development. In the present case, one of the main apprehensions, justifiable, concerns removal of ACM and PCB from engine room, vent room and insulated pipelines. According to the removal plan, all major quantity of ACM (85%) is in form of wall partitions, ceiling and
roofing in rooms and gallery. It is reusable. Therefore, the panels, partitions, ceilings etc. have to be removed in such a way that the ACMs are not damaged. The removal plan submitted by the recycler has been approved by the TEC. Similarly, air monitoring has to be conducted for the air-borne ACM, if any. For that purpose the Committee has recommended appropriate respiratory protection to be provided to the workmen. For each category of work to be done in different areas of the vessel, gears have been provided to the workmen in the form of whole body coveralls, gloves, safety
shoes, helmet, safety goggles etc. Similarly, as regards waste generation, the
TEC report suggests by way of protection air monitoring respiratory protection to employees, leak tests, negative pressure checks etc. Similarly, storage of contaminated wastes in the land-fills has also been incorporated in the recommendations of the TEC. Therefore, in our view, in the light of the above conditions to be fulfilled by the recycler, the principle of sustainable
development based on the concept of "balance" stands satisfied.

14. We may mention one important aspect. Asbestos in the panel exists even in false ceiling constructed in commercial establishments. It is only when those panels are broken that asbestos as a hazardous substance emerges. In the present case, 85% of the asbestos is in the panels and insulation that quantity is reusable. As far as dismantling is concerned, the plan complies with section 3.3.2. However, it is likely that in some cases asbestos as a substance may emerge and, therefore, the report of TEC has taken care to look into and approve the Recycling Management Plan. In our
view, the report of TEC is foolproof. It has taken into account international
standards to regulate ship-breaking activity. The quantity of PCB has been
determined by Gujarat Enviro Protection & Infrastructure Ltd. ("GEPIL").
There is NOC given by GMB as also by GPCB in the matter of ship-breaking of the ship "Blue Lady". The report dated 10.5.2007 has evolved State-of-the-Art mechanism to regulate removal of asbestos. Recycling is a key element of sustainable development. The Committee has examined each and every aspect concerning recycling and dismantling of the ship "Blue Lady". 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. Taking into account the contours of TEC report dated 10.5.2007 and the opinion of TEC that the recycler M/s Priya Blue Industries Pvt. Ltd. has complied with the norms regarding dismantling and recycling, we accept the report of the TEC dated 10.5.2007 and we accordingly grant permission to the said recycler to dismantle the said ship "Blue Lady" as recommended by TEC (see: para 12 of the TEC report dated 10.5.2007).

15. Accordingly the I.A. stands disposed of.

The ILO information document concerning chrysotile asbestos

The continuing use of asbestos is a cause of great concern. Its extensive use in the past has lead to a world epidemic of asbestos-related diseases today. According to an ILO estimate, 100,000 persons die every year from incurable asbestos-related diseases and many more will develop them in the future because of past exposure to Asbestos.

The ILO is using all its available means of action to prevent health risks posed by harmful exposures to asbestos through wide international co-operation and effective tripartite actions at national and enterprise levels aiming at the elimination of asbestos-related diseases. Among them, the promotion of the ratification and application of ILO’s Conventions on occupational cancer (No. 139), working environment (No. 148), safety in the use of asbestos (No.162), and safety in the use of chemicals at work (No.170) are specifically targeted. These four ILO international instruments have obtained a total of 119 ratifications by ILO member States. They provide a solid background for worker protection against exposure to asbestos by prescribing comprehensive preventive measures at national and enterprise levels. Other ILO means of action include sharing knowledge and experience, enhancing labour inspections, direct technical assistance to countries and technical co-operation. This task is being pursued in the context of the wider implementation of the ILO 2003 Global Strategy on Occupational Safety and Health and the recommendation of the 13th Session of the Joint ILO/WHO Committee on Occupational Health (December 2003) to eliminate silica- and asbestos-related diseases.

To pursue this goal of the elimination of asbestos-related diseases, the 95th session of the international Labour Conference (June 2006) adopted a Resolution calling for, inter alia, the elimination of the future use of asbestos and the identification and proper management of asbestos currently in place as the best means of preventing asbestos-related diseases and deaths. The Resolution also resolves that the ILO Convention Concerning Safety in the Use of Asbestos, 1986, (No. 162), should not be used to provide a justification for, or endorsement of, the continued use of asbestos. The text of the resolution is appended to this document.

It should be specifically mentioned that the ILO Convention Concerning Safety in the Use of Asbestos, 1986, (No.162), provides that “where necessary to protect the health of workers and technically practicable, national laws or regulations shall provide for one or more of the following measures- (a) replacement of asbestos or certain types of asbestos or products containing asbestos by other materials or products or the use of alternative technology, scientifically evaluated by the competent authorities as harmless or less harmful, whenever this is possible…” (Article 10 (a), emphasis added). The ILO Convention Concerning Safety in the Use of Chemicals at Work, 1990, (No.170), in the Part on Responsibility of Exporting States, indicates that “When in an exporting member State all or some uses of hazardous chemicals are prohibited for reasons of safety and health at work, this fact and the reasons for it shall be communicated by the exporting member State to any importing country” (Article 19).
Taking into account the foregoing, the ILO supports the recommendation to include chrysotile Asbestos on the list of substances listed in Annex III of the Rotterdam Convention.

ILO Resolution Concerning Asbestos

Resolution Concerning Asbestos

(adopted by the 95th Session of the International Labour Conference, June 2006)

The General Conference of the International Labour Organization,
Considering that all forms of asbestos, including chrysotile, are classified as known human
carcinogens by the International Agency for Research on Cancer, a classification restated by the
International Programme on Chemical Safety (a joint Programme of the International Labour
Organization, the World Health Organization and the United Nations Environment Programme),
Alarmed that an estimated 100,000 workers die every year from diseases caused by exposure to asbestos,
Deeply concerned that workers continue to face serious risks from asbestos exposure,
particularly in asbestos removal, demolition, building maintenance, ship-breaking and waste
handling activities,
Noting that it has taken three decades of efforts and the emergence of suitable alternatives for a
comprehensive ban on the manufacturing and use of asbestos and asbestos-containing products to be adopted in a number of countries,
Further noting that the objective of the Promotional Framework for Occupational Safety and
Health Convention 2006 is to prevent occupational injuries, diseases and deaths,
1. Resolves that:
(a) the elimination of the future use of asbestos and the identification and proper
management of asbestos currently in place are the most effective means to protect workers from asbestos exposure and to prevent future asbestos-related diseases and deaths; and
(b) the Asbestos Convention, 1986 (No. 162), should not be used to provide a justification
for, or endorsement of, the continued use of asbestos.
2. Requests the Governing Body to direct the International Labour Office to:
(a) continue to encourage member States to ratify and give effect to the provisions of the
Asbestos Convention, 1986 (No. 162), and the Occupational Cancer Convention, 1974 (No. 139);
(b) promote the elimination of future use of all forms of asbestos and asbestos containing
materials in all member States;
(c) promote the identification and proper management of all forms of asbestos currently in
place;
(d) encourage and assist member States to include measures in their national programmes
on occupational safety and health to protect workers from exposure to asbestos; and
(e) transmit this resolution to all member States.

Asbestos is deadly serious! Prevent exposure !

Asbestos is deadly serious! Prevent exposure !

• Asbestos campaign 2006
  • Introduction