Priya Blue violates apex court's order on Contaminated Ships



In the wake of most recent violations of the Court's order by the Priya Blue Industries Ltd, an application was filed in the Supreme Court on 4th October, 2007 in the Ship-breaking/Blue Lady case. It has refused to decontaminate the ship and submit the mandatory 20 documents prior of beaching. Priya Blue Industries Ltd has taken the burden of decontamination from the Norwegion Cruise Line Ltd, a subsidiary of Star Cruise Ltd who had estimated the cost of decontamination of the ship to be 17 million Euro. Blue Lady (SS Norway) has been bought by Sanjay Mehta of Priya Blue Ship Breakers for around Rs 10 crore. If the court does not act in right earnest Blue Lady is likely to meet the fate of Riky, the Danish ship.

"The ship breaking industry . . . has reverted back to labor intensive technology, since the high tech proposition has proved more costly,"Priya Blue Industries, the ship breaker notes on its website.

It is submitted that Priya Blue has dared to violate the Court order of 6th September, 2007. The text of the order that banned the entry of contaminated ships is given below

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IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
I. A. No. 34 of 2007
In
Writ Petition (Civil) No. 657 of 1995

DATE OF JUDGMENT: 06/09/2007

BENCH:
Dr. ARIJIT PASAYAT & S.H. KAPADIA

JUDGMENT:
JUDGMENT
O R D E R

WRIT PETITION (C) NO. 657 of 1995
(With SLP ) No. 16175/1997, C.A. No.7660/1997 and Suo Motu Con.Petition 155/2005)

Dr. ARIJIT PASAYAT, J

1. By order dated 17.2.2006 in the present W.P.(C) No.657/1995 this
Court passed the following order:

"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. The matter is adjourned by ten
weeks"

2.Subsequently, time for submission of report was extended from time to time. It appears that in compliance with the aforesaid order the Ministry of Environment and Forests after getting views of the concerned ministries and organizations constituted a Committee for recommending on issues relating to Ship Breaking. In terms of order of the Ministry dated 24.3.2006 the Committee was headed by the then Secretary, Ministry of Environment and Forests and comprised of experts from reputed organizations like National Institute of Occupational Health (NIOH), Ahmedabad, Indian
Toxicological Research Centre (ITRC), Lucknow, retired Naval Officers,
Academicians from Indian Institutes of Technology (IITs) of Kharagpur and
Chennai and Central Pollution Control Board (CPCB). The Committee after
examining various materials and details has submitted its report. During its
various sittings, agencies and individuals were called for discussions. They
included the Gujarat Maritime Board (in short 'GMB'), Department of Ports,
Govt. of Gujarat, representatives of Alang-Sosiya Ship Breakers' Association (in short 'ASSBA Breakers'), Gujarat Pollution Control Board (in short 'GPCB'), Department of Customs, Alang, Directorate of Industrial Safety and Health (in short 'DISH' of Govt. of Gujarat), Representatives of Workers at Alang Sosiya Yard, Assistant Labour Commissioner, Gujarat Enviro Protection and Infrastructure Ltd. (in short 'GEPIL'), operators of Treatment, Storage and Disposal Facility (in short 'TSDF') at Alang. The
Committee as it appears from the reports has undertaken a very elaborate and detailed study of the problems and has also suggested valuable norms and solutions. It has focused on the "Hazards Associated with Ship Breaking" under this broad head. Reference has been made to hazards in ship breaking industry, occupational and health issues, primary preparation and breaking, occupational health hazards associated with different stages of ships, secondary breaking and sorting and handling of hazardous materials.

It has also focused on ships of special concern and the assessment of hazardous wastes and potentially hazardous materials. It has also referred to occupational health and safety issues at Alang-Sosiya Yard and the asbestos related issues. Reference has been made to studies conducted by National Institute of Occupational Health and Workers evaluation of State and the Demonstration facility for Asbestos Removal. It has categorized the "ships of special concern" as follows:

3. Table-2.1. Categories of Ships of "Special Concern"

Sl.No. Category Nature of Concern Essential Infrastructure and Precautions Necessary

1. Warships Large quantities of PCBs, ACMs Adequate infrastructure at
the yard to handle the identified quantities, adequate approved infrastructure of
disposal facilities nearby, adequately trained staff, strict monitoring by SPCB/SMB

2. Large Passenger Liners Large quantities of PCBs, ACMs Adequate infrastructure at
the yard to handle the identified quantities, adequate approved infrastructure of disposal facilities nearby, adequately trained staff, strict monitoring
by SPCB/SMB

3. Nuclear Powered Ships Residual Radiation Level Monitoring by AERB/Health
Physics Department of BARC of residual radiation level and if found higher than the
permissible limits to recommend measures for decontamination. Reactors, cores and all
radioactive wastes to be removed by owner before last voyage for breaking

4. Deep Draft Ships requiring to be beached at 1.5 K.M. or more from the shore
base line Distance from the Beach during beaching Extra precautions in transferring
hazardous materials or materials containing hazardous substances to avoid spillage
into the sea.

5. IMDG Hazardous Residues in Cargo Tanks Adequate infrastructure at the yard to
handle the identified quantities, adequate approved infrastructure of disposal facilities nearby, adequately trained staff, strict monitoring by SPCB/SMB

6. FPSO/Offshore Platforms Beaching difficulties Extra precautions in transferring
hazardous materials or materials containing hazardous substances to avoid spillage
into the sea.


4. The recommended process for anchoring, beaching and breakingneeds to be quoted:

"3. Upon entry into the Port area, a ship is allowed to banchored by dropping one or more anchors to the seabed. This prevents drifting of the ship, tethers it to one spot, and enables boarding from boats. A ship at anchor may lift its anchors, and
sail away. Anchoring of ships is thus fully reversible.

Beaching refers to running aground on the beach a ship meant for breaking by the beaching method. This ship is sailed into the beach under its own power or is towed by barges. A beached ship is rendered immobile, and cannot usually be refloated. Beaching is thus irreversible.

"Ship Breaking" is the process of dismantling a vessel's structure for scrapping or disposal whether conducted at a beach, pier, dry dock or dismantling slip. It includes a wide range of activities, from removing all gear and equipment to cutting down and recycling the ship's infrastructure.

It may be mentioned that a ship at anchor, or while otherwise afloat, requires to be fully manned, with at least generators running. These involve significant costs. There is little possibility of hazardous materials embedded in the ship's equipment or structure being released to the environment, till the stage of ship breaking. Accordingly, the Committee considered that it is not necessary to require ships to remain outside Port limits, or outside the territorial waters, or the Exclusive Economic Zone (EEZ), pending decision on its being permitted to anchor, or beach.

3.1. Recommended Process for Anchoring:

The ship owner or recycler should submit the following documents well in advance of the arrival of the ship for recycling for a desk review by the SMB in consultation with SPCB and Customs Department:

a) Name of the Ship
b) IMO Identification No.
c) Flag
d) Call Sign
e) Name of the Master of the Ship and his nationality
f) List of the crew
g) GRT/NRT/LDT of the ship with supporting documents
h) Assessment of hazardous wastes/hazardous substances: In the structure of the ship, and on board as far as practicable by reference to the ship's, drawings, technical specifications, ship's stores, manifest, in consultation with the ship builder,
equipment manufacturers and others as appropriate. In the case of ships of special concern, in addition to identification and marking of all areas containing hazardous wastes/hazardous substances, quantification of such wastes/substances would also
be necessary.

After desk review by SMB/SPCB/Customs, a decision will be taken regarding permission for anchorage of the ships. In case, permission is refused by any one of these three agencies, the ship owner would be entitled to both a review and appeal. SMB
and Customs Dept. would separately notify the procedure therefor along with the time frames and consequences of not adhering to the time frames. In the case of SPCB, while review would be done by an appropriate authority of the SPCB itself,
the appeal would lie with the CPCB since there are no specific legal provisions governing this. Once a decision is taken to accord permission for anchorage, instructions for safe anchorage would be issued by the SMB.

3.2 Recommended Process for Beaching:

For obtaining beaching permission, the recycler has to submit documents as per Annexure - I of the GMB notification dated 05th July 2003. At anchorage, the ship would be boarded by representatives of Customs Dept./ SPCB/ Explosives Dept/AERB to verify the submissions/data provided for desk review. If considered necessary, an adequate and representative sample may be used for the verification. For oil tankers, Gas
Free and Fit for Hot Working certificate should also be submitted in respect of oil cargo tanks and slop tanks.

After verification, beaching permission will be given by SMB based on clearance granted by all the above/concerned departments/agencies. Again in the event of refusal to grant permission for beaching the ship owner shall be entitled to a
review and appeal on the lines of provisions governing anchorage. Thereafter, the recycler pays customs duty and takes charge of the ship.

3.3 Recommended Process for Breaking:

The ship recycling plan is an important document. It has two components i.e. Ship Specific Dismantling Plan, and Recycling Facility's Management Plan. To obtain permission for recycling, the recycler is currently required to submit
application in Form 2 of GMB's notification dated 05th July 2003 along with the documents specified therein. In addition, the ship recycler should also submit a Dismantling Plan and a copy of the Recycling Facility's Management Plan, along with
approval of SPCB therefor.

3.3.1. Recycling Facility Management Plan:

Before granting authorization to the recycling facilities,_the SPCB should ensure that the Plan has been adopted by the Board, or the appropriate governing body of the company, and should include:

(a) A policy with focus on adequate worker safety and theprotection of human health and environment the establishment of goals leading to the minimization, and ultimately elimination of the adverse effects on human health and the environment
caused by ship recycling.

(b) A system for ensuring the implementation of the requirements set out in national regulations, the achievement of goals set out in the policy of the company, and a commitment to continual improvement of the procedures used in ship recycling
operations.

(c) Identification of roles and responsibilities of supervisors, contractors, and workers.

(d) A programme for appropriate training of workers and availability of adequate PPEs and material handling equipment.

(e) An emergency preparedness and response plan for the plot.

(f) A system for monitoring the performance of the ship recycling operations.

(g) A system for reporting how, the ship recycling operations would be performed, including system for reporting discharges, emissions, and accidents causing damage or potential to cause damage to workers' safety, human health and the environment,
due to handling of hazardous wastes, and materials containing hazardous substances.

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 on board the ship, and their
transport to the disposal facility or registered recycling facility
should be provided."


5. It has also suggested sequence of steps/process for grant of clearance
by SMB/SPCB/Customs Department for ships destined for dismantling at
Ship Breaking Yards. The same reads as follows:

(i) The removal of asbestos dust and fibres and its
handling should be done in a wet condition.
(ii) On shore removal of asbestos should be done in
enclosures maintained under negative pressure, with
filters for outgoing air and wastewater. The applicable
BIS specifications should be adhered to in respect of such
enclosures.
(iii) For ships of "Special Concern", where
asbestos/ACMs quantities are the Special Concern,
asbestos/ACMs removal on board should be done in
enclosures maintained under negative pressure with
arrangements for filtration of outgoing air and
wastewater. For other ships, the practice of wet removal
of asbestos on board may be adequate with the use of
appropriate PPEs.
(iv) The asbestos and broken pieces of ACM's
sheets/panels thus removed should be packed in leak
proof synthetic packets and disposed of at secured
landfills where the packets should be solidified by
mixing with cement. Recovered and usable ACMs
sheets/panels may be sold for reuse as permitted by law.
(v) PPEs like masks under positive pressure (or masks or
respirators meeting BIS specifications for asbestos
handling) should be provided to all the workers engaged
in asbestos removal.
(vi) Asbestos fiber concentrations should be monitored
regularly.

6. The report contains recommendations on management of occupational safety and health issues and handling of hazardous materials and hazardous wastes. The report also identifies the stake holders. It is pointed out that the agencies responsible for ensuring compliance with the regulations in Gujarat are GMB, DISH, Govt. of Gujarat, GPCB, Customs and the Petroleum Safety Organisation. Reference has also been made to Workers Welfare issues. Summary of the recommendations has been categorised into four categories i.e. immediate, short term, medium term and long term.

7. We have heard learned counsel for the parties at length. here is unanimity that the report is a comprehensive one. Certain suggestions have been given by Mr. Parekh to the effect that there should be additional precaution for de-contamination. It is suggested that before leaving port in a foreign country a certificate that it is totally de-contaminated should be obtained. We find many practical difficulties in accepting this suggestion. In fact the decontamination aspect has been taken care of in the report. The authorities in India can without the certificate at the stage of anchorage verify and come to a conclusion that if the ship is contaminated same is to be sent back.

8. In Research Foundation for Science Technology National Resource Policy v. Union of India and Anr. (2005 (10) SCC 510) while dealing with the aspect of ship breaking. It was noted as follows:

(2) Ship-breaking:
We accept the following recommendations of HPC:

"(1) Before a ship arrives at port, it should have proper consent from the authority concerned 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.

(2) The ship should be properly decontaminated by the ship owner prior to the breaking. This should be ensured by SPCBs.

(3) Waste generated by the ship-breaking process should be classified into hazardous and non-hazardous categories, and their quantity should be made known to the authority concerned or the State Maritime Board.

(4) Disposal of waste material viz, oil, cotton, dead cargo of inorganic material like hydrated/solidified elements, thermocol pieces, glass wool, rubber, broken tiles, etc. should be done in a proper manner, utilising technologies that meet the criteria of an effective destruction efficiently of 99.9 per cent, with no generation of persistent organic pollutants, and complete containment of all gaseous, liquid and solid residues for analysis and, if needed, reprocessing. Such disposed-of material should be kept at a specified place earmarked for this purpose. Special care must be taken in the handling of asbestos wastes, and total quantities of such waste should be made known to the authorities concerned. The Gujarat Pollution Control Board should authorise appropriate final disposal of asbestos waste.

(5) The ship-breaking industries should be given authorization under Rule 5 of the HW Rules, 2003, only if they have provisions for disposal of the waste in environmentally sound manner. All authorisations should be renewed only if an industry has facilities for disposal of waste in environmentally sound manner.

(6) The State Maritime Board should insist that all quantities of waste oil, sludge and other similar mineral oils and paint chips are carefully removed from the ship and taken immediately to areas outside the beach, for safe disposal.

(7) There should be immediate ban of burning of any material whether hazardous or non-hazardous on the beach.

(8) The State Pollution Control Board (of Gujarat and other coastal States where this ship-breaking activity is done) be directed to close all units which are not authorised under the HW Rules.

(9) That the plots where no activities are being currently conducted should not be allowed to commence any fresh ship-breaking activity unless they have necessary authorisation.

(10) The Gujarat PCBs should ensure continuous monitoring of ambient air and noise level as per the standards fixed. The Gujarat PCBs be further directed to install proper equipment and infrastructure for analysis to enable them to conduct first-
level inspection of hazardous material, radioactive substances (wherever applicable). AER shall be consulted in such cases.

(11) The Gujarat SPCB will ensure compliance with the new Gujarat Maritime Board (Prevention of Fire and Accidents for Safety and Welfare of Workers and Protection of
Environment during Ship breaking Activities) Regulations, 2000, by the Gujarat Maritime Board and should submit a compliance report to the Court within one year of the coming into force of the said Regulations.

(12) The notification issued by GMB in 2001 on gas free for hot work, should be made mandatory and no ship should be given a beaching permission unless this certificate is shown.
Any explosion irrespective of the possession of certification should be dealt with sternly and the licence of the plot-holder should be cancelled and the Explosives Inspector should be prosecuted accordingly for giving the false certificate.

(13) A complete inventory of hazardous waste on board of ship should be made mandatory for the shipowner. And no breaking permission should be granted without such an inventory. This inventory should also be submitted by GMB to SPCBs concerned to ensure safe disposal of hazardous and toxic waste.

(14) The Gujarat Maritime Board and Gujarat SPCB officers should visit sites at regular intervals so that the plot-owners know that these institutions are serious about improvement in operational standards. An 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 industry.

(15) SPCBs along with the State Maritime Boards should prepare landfill sites and incinerators as per CPCB guidelines and only after prior approval of CPCB. This action should be taken in a time-bound manner. The maximum time allowed should be one year.

(16) At the international level, India should participate in international meetings on ship-breaking at the level of the International Maritime Organisation 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 export to India for breaking. Participation should include from Central and State level.

(17) The continuation or expansion of the Alang ship- breaking operations should be permitted subject to compliance with the above recommendations by the plot-
holders.

(18) That the above conditions also apply to other ship- breaking activities in other coastal States."

9. It is desirable that the Government of India shall formulate a comprehensive Code incorporating the recommendations and the same has to be operative until the concerned Statutes are amended to be in line with the recommendations. Until the Code comes into play, the recommendations shall be operative by virtue of this order. Until further orders, the officials of Gujarat Maritime Board, the concerned State Pollution Control Board, officials of the Customs Department, National Institute of Occupational
Health (in short 'NIOH') and Atomic Energy Regulatory Board (in short 'AERB') shall oversee the arrangement. The Collector of the district shall be associated when the actual dismantling takes place. Within three weeks the Central Government shall notify the particular authorities. The vetting of the documents to be submitted for the purpose of grant of permission for ship breaking shall be done by the authorities indicated above.

10. It is ordered accordingly.

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The prayers of the 4th October, 2007 application for clarification are given below.

The position regarding decontamination, how it will be done as per order dated 14.10.2003 and 6.9.2007.

The position regarding total quantity of Radioactive substances in the ship and its safe disposal;

The position regarding total quantity of PCB in the ship and its safe disposal.

The position regarding disposal of the following toxic substances found on the ship as cargo.

How the 85% asbestos waste which is banned will be safely disposed of – its monitoring up to the end user and itscontrolled and safe use and reuse will be possible and will be ensured;

The scientific material to show that beaching (which was illegal) was not irreversible. The position regarding entry, anchorage and beaching of the ship Blue Lady.

Comments

toxicswatch said…
Setting precedent for trafficking hazardous waste

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

5 October 2007 - On 6 September and 11 September, two related judgments in the matter of shipbreaking and hazardous waste were issued by the Supreme Court. The Division Bench of Justice Dr Arijit Pasayat and Justice S H Kapadia delivered both the orders. This was the same Bench that was seized with the Le Clemenceau case. The first order is a general order on the issue of ship-breaking. The second order was with specific reference to status of the Blue Lady (formerly SS Norway) -- a ship with known dangers: asbestos and radioactive material, and without clear papers -- currently beached at the Alang shipyard in Gujarat. This order gave a go ahead to dismantling of the Blue Lady.

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

In its order on 11 September, the Honourable Supreme Court advanced "The concept of "balance" under the principle of proportionality applicable in the case of sustainable development…" and ruled that: "It cannot be disputed that no development is possible without some adverse effect on the ecology and environment, and the projects of public utility cannot be abandoned and it is necessary to adjust the interest of the people as well as the necessity to maintain the environment. A balance has to be struck between the two interests. Where the commercial venture or enterprise would bring in results which are far more useful for the people, difficulty of a small number of people has to be bypassed. The comparative hardships have to be balanced and the convenience and benefit to a larger section of the people has to get primacy over comparatively lesser hardship."

The apex court ruled this way even though it also did not dispute that the entry of Blue Lady in Indian territorial waters and its continued presence since June 2006 was itself in violation of court's own order of 14 October 2003. It was also in violation of the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal, and a number of other international environmental and labour conventions and treaties -- that govern the breaking of contaminated ships - to all of which India is a signatory.

In the 11 September order, the honourable justices refer to former the Attorney General of UK saying, "In his Keynote Address, on 'Global Constitutionalism', reported in Stanford Law Review vol. 59 at p. 1155, Lord Goldsmith, Her Majesty's Attorney General (UK), stated that British Constitution though unwritten is based on three principles, namely, rule of law, commitment to fundamental freedoms and principle of proportionality. European Convention on Human Rights ("ECHR") also refers to the concept of balance."

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

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

Verified threat of hazardous waste on-board - radioactive elements

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

"Americium-241 poses a significant risk if ingested (swallowed) or inhaled. It can stay in the body for decades and continue to expose the surrounding tissues to both alpha and gamma radiation, increasing the risk of developing cancer. Americium-241 also poses a cancer risk to all organs of the body from direct external exposure to its gamma radiation."
-- United States Environmental Protection Agency

In the order passed the apex court merely states, "There was also an apprehension rightly expressed by the petitioner regarding radioactive material on board the vessel Blue Lady. Therefore, an immediate inspection of the said vessel beached at Alang since 16.8.2006 was undertaken by Atomic Energy Regulatory Board (AERB) and by Gujarat Maritime Board (GMB). The apprehension expressed by the petitioner was right. However, as the matter stands today, AERB and GMB have certified that the said vessel Blue Lady beached in Alang no more contains any radioactive material on board the ship."

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

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

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

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

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

Verified threat of hazardous waste on-board - asbestos

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

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

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

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

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

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

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

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

Faulty argument on a beached ship not being refloatable

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

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

Dangerous precedent for globalisation of waste

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

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

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

P.S: An fresh application in the case is now with the Supreme Court since 4 October. The application is seeking further clarifications on: the final position of the apex court on the quantity of various toxic and radioactive substances on board the Blue Lady, how decontamination will be done, the scientific basis of the decision that beaching was not reversible, the position regarding the original and illegal entry, anchorage and beaching of the ship itself, and more.

http://www.indiatogether.org
Anonymous said…
Mangalore Fishermen fear that a ship breaking unit might come at Taneerbavi coast

MANGALORE, September 15, 2007: Coastal fishermen in Mangalore have begun fearing for the sanity of their beaches. With two cargo freighters being 'intentionally' grounded near Taneerbavi beach has pushed the fishermen to make so many inferences including a deep rooted fear of the Taneerbavi coast being turned into a ship repairing or even ship breaking unit.

Some senior fishermen leaders who are in the helm of affairs at the state and national fishermen bodies have chosen to tell media persons on conditions of anonymity that Mangalore has started attracting large industrial houses in marine sector including the ship breaking and ship repair and building company. The fears stems from the fact that a huge chunk of land of Bengre village has been purchased by a local person and it was likely to be re-sold to an industrialist of Aland in Gujarat. This place is known for its ship breaking unit.

The fishermen leaders who were incensed at the incident of two freighters considerably older in age namely the Eritrian freighter M.V.Den Den capsizing in mysterious conditions and secondly the St. Vincent Island registered Chinese freighter M.V. Chang Le Man also being 'intentionally grounded' very near to the beach. They now feel that this 'hideous incidents' of seafaring vessels near the Taneerbavi beach is going to be a regular feature and sometime in the near future one of the ships will be taken up for repairs near the beach. This event as they foresee it, if at all occurs will be a beginning of a regular ship repair unit and later it could be a ship breaking unit too.

The Chang Le Man which is anchored in the outside anchorage of the New Mangalore Port, the fishermen feel is not yet in the sailing condition and there are fears that its hull might have developed some problems and it might not be in a position to 'sail away' to its natural destination and the repair work cannot be taken up in Mangalore as there are no facility available in the city's maritime installations. The next alternative is to create a small facility to begin with repairing Chang Le Man.

Fishermen agree that they are reading too much into the 'seemingly freak' incidents involving Den Den and Chang Le Man, but it is too wild that two freighters being in trouble in the same place in just two months time. The fishermen bodies in Mangalore are digging deep into their fears and are watching the developments.
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