HAZARDOUS WASTE MANAGEMENT REGULATIONS, 2016 INDIA: A GLOBAL ANALYSIS

AUTHORS:

Samkit Jain, NLU Jodhpur

Manav Bhagat, Nirma University

Subhadra, SOA National Institue of Law, Bhubaneswar

EDITOR: Varshita Girish, CAIL, Bengaluru




INTRODUCTION:

Hazardous and Other Wastes Management Rules, 2016 stipulates what hazardous wastes are. In simpler terms, hazardous waste is waste which is dangerous to the health or the environment. There are various types of hazardous wastes such as flammable to acutely poisonous to human health which has been defined under the law. In this article we will be comparing the Indian regulations with other countries like UK, USA, Netherlands.


COMPARATIVE ANALYSIS:


NETHERLANDS:

Hazardous waste management regulation has become a need of the hour in the year 2020 when the climate change is happening and global warming is at its peak. Looking at the rules and regulations of developed European Nation Netherland, the management of the hazardous and other waste is regulated by the National Waste Management Plan under the Environmental Act of 2004. The National Waste Management Plan has been set for 4 years and gets renewed after 4 years. The National Waste Management Plan includes all types of waste to which the Environmental Management Act is applicable. This Act states that all authorities of the Dutch government must abide by the National Waste Management Plan. The Environmental act has defined the role of the provincial, state, and municipal government. The Act further stipulates the tools which should be used to ensure proper management of hazardous waste. It further provided classification regarding what is industrial and hazardous waste, notification regarding its disposal and waste management has been provided. The Act specifies that only licensed company can collect waste, only the owner of the waste can dispose of it. No contractor, collectors can dispose of it. The transporters, agencies must be registered.[1]

Comparative analysis of the Indian regulation and rules on the waste management of the hazardous waste is covered under the Environment Protection Act 1989. The rules regarding the waste management were added and amended in the year 2002 and 2003. Latest amendment in the rules was in the year 2016. The rules help to identify what is hazardous waste and what constituents as hazardous waste. Legislation of Netherlands does not specify specifically as to what constitutes as hazardous waste while the Indian legislation provides the same. One unique feature about the Dutch Legislation is that plans regarding hazardous waste management are set out and they have also made plans about generating energy from the waste generated. According to 2016 rules, the definition and ambit of the hazardous waste is increased, the rules define the waste as:

"Any waste, which by any of its physical, chemical, reactive, toxic, flammable, explosive or corrosive characteristics causes danger or is likely to cause danger to health or environment, whether alone or when in contact with other wastes or substances has been defined as hazardous." [2]

The 2016 rules have stated about creating independent body like pollution control board, getting environmental clearance from the Ministry of forest climate and environment for industrial setup, ban on export and import of hazardous waste and chemicals etc. The rules are a step forward to preserve the environment and ensure development hand in hand.


United Kingdom

Indian constitution is among the few within the world that contains specific provisions for environmental protection. Under the Indian constitution, Article 48-A says 'the State shall endeavour to protect and improve the environment and to safeguard the forests and wildlife of the country. Article 51-A (g) during a new chapter entitled 'Fundamental Duties', imposes responsibility on every citizen to guard and improve the natural environment.

In Supreme court case[3], it ruled that ‘The issues of environment must and shall receive the very best attention from this court’. The Supreme Court and the High Court under Articles 32 and 226 of the constitution have expanded the scope of providing relief in cases concerning Environmental pollution and resource degradation.

UK's unwritten constitution does not provide any express regard to the Environmental protection though common-law rule as an equivalent has been alive for long. But the European Community (EC) law has filled up the constitutional gap. The Community's environmental policy began with recognition at the Paris Summit in 1972 of the very fact that economic expansion isn't an end in itself but a means to obtain an improvement in the quality of life. However, no Treaty has been provided expressly for the adoption of legislation to guard the environment.

India did not have separate legislation on various aspects of the environment, except forests, until the Stockholm Conference of 1972. In contrast, the environmental laws in the UK have been in existence since the enactment of the Alkali Act 1863. Now India and the UK have in place appropriate legislative measures to protect the environment.

UK was the first country to industrialize so it was also the first country to address the environmental issues both at the level of legislation and institutions. The UK has been prudent in quickly reversing the trend of environmental degradations by systematic efforts both at the level of evolving policies and legislation. India is now facing environmental problems and resource degradation on a massive scale. Indian environmental laws are not proving effective and on several occasions, enforcement has been induced by the higher judiciary namely the Supreme Court and the High Courts. It is high time that India learns from the experience of the UK in redesigning the environmental laws for effective control of the environmental problems.

The Environmental Protection Act (EPA) 1990 in the UK established a waste management routine and a statutory duty of care. But after the enactment of the Environment Act 1995, a shift from waste disposal to waste management has taken place. The Environment Agency has the necessary power to issue waste management licenses. The Agency can revoke a license where it appears to it that the holder of the license has failed to be a fit and proper person or the continuation of the activity would cause harm to the environment or human health.

Government of India has still not succeeded in bringing a modern forestry Act despite having announced a progressive forest policy in 1988. The position in the UK is a lot more progressive. Moreover, the UK’s Biodiversity Action Plan takes conservation aspects much ahead of India. There is an urgent need to restructure the Indian Forest Act 1927 in tune with the Forest Policy of 1988.

Most of the environmental laws except the EPA 1986 in India prescribe only Small fines while in the UK it is up to £20,000 in cases of serious violations.


United States of America

Concerns about solid waste management were on the rise during the 1950s in the USA. United States Environmental Protection Agency has come up with a definition and a process that identifies those substances which can be hazardous and put them under-regulated hazardous waste category. They have come up with a three-step mechanism to treat such waste. Firstly, the waste must be identified as a solid waste to be categorized as a hazardous waste. Secondly, it has to be ensured that the waste so described as solid in the first step has not been regulated to be excluded from being a solid or hazardous waste. That is even after the generator determines that the waste meets the criteria and requirements to be categorized as a solid and hazardous waste, it has to be checked whether the waste falls into some kind of exception or not. Lastly, even after ensuring that it has not been excluded under any regulation, some of the facilities have filed a petition [4]against EPA and have successfully created an exception for their wastes and brought them out of the ambit of RCRA Subtitle C regulation.

Under the first step, each generator has been given the responsibility to supervise its waste and determine the category under which it has to be put. The waste has to be treated before it is sent for recycling or disposed of. After the waste has been categorized and treated they are moved to designated facilities for their recycling or disposal. Now the recycling of waste materials though has many benefits attached to it but the storage of these materials before their recycling poses a threat of spills or leaks. Thus the Storage and Disposal facilities have to be very careful while treating and storing such wastes and strike a balance between the conservation of natural resources and the conservation of Environment and Human health.

In India, Hazardous Waste Management Rules, which were passed in 2016 was the first time when a legislation distinguished between Hazardous and other wastes. The Central Pollution Control Board (CPCB) mentioned in its report[5] that the total hazardous waste generated in the year 2015 was 7.46 metric tons per annum by 44,000 industries of whom the data was collected.

Before Hazardous Waste Management Rules, 2016[6] the provisions mentioned in the Environmental Protection Act, 1986[7] governed the treatment of such waste. Any irregularities in the treatment of such waste, be it hazardous or not, were let go off easily with a measly fine. The problems associated with the wrongful treatment of hazardous wastes could be catastrophic. If such waste is burned, the fumes which it disperses are toxic as they comprise of heavy metals such as mercury and others which may become the cause of several health-related issues. Moreover, the workers engaged in such plants are in the nearest proximity of the toxic discharges and are exposed to the threat of various diseases including skin problems, cancer, genetic disorders for future generations, etc.

Thus we see that India has lagged decades behind the USA in realizing the importance of an effective and stringent Waste Treatment Regulation but the 2016 rules are a ray of hope. They have emphasized prevention, minimization, reuse, recycling, recovery, co-processing; and safe disposal and have installed a stricter mechanism for seeking any kind of permissions.

CONCLUSION:

Thus, we see that most of the other countries had realized the importance of a proper waste management system in place way before it dawned upon India. Netherland, had put in place a legislation back in 2004 and further renews it every four years to ensure it meets the current needs of the Environment. UK, the first country to industrialize had an effective mechanism from 1972 owing to its membership of the European Union and the USA had started showing concerns way back in the 1950s. India, though arriving late at the scene has drawn inspiration from other countries and has installed a program that caters to its needs in every possible manner at the moment. However, with rapid industrialization and increasing indulgence in production activities, India has to look into the aspects and gaps which it needs to fill in the future and should not become complacent as the threat of improper treatment of waste materials is draconian as we have seen in the latest episode of Vizag Gas Leak. Thus, it is important to keep up with the increase in production activities in the modern times.

[1] § 10 Environment Management Act, 2004 (Netherlands). [2] The Hazard of Hazardous Waste Management in India: A Legal Overview - Legal Articles in India, Legal Articles in India (2020), http://www.legalservicesindia.com/law/article/1246/14/The-Hazard-of-Hazardous-Waste-Management-in-India-A-Legal-Overview (last visited Jul 25, 2020). [3] Tarun Bharat Sangh, Alwar vs Union Of India And Others, (1993). [4] Electronic Code of Federal Regulations (eCFR), Electronic Code of Federal Regulations (eCFR) (2020), https://www.ecfr.gov/cgi-bin/text-idx? (last visited Jul 25, 2020). [5] Cpcbenvis.nic.in (2020), http://www.cpcbenvis.nic.in/envis_annual_report/Annual%20progress%20report%202015-16.pdf (last visited Jul 25, 2020). [6] Npcindia.gov.in (2020), https://www.npcindia.gov.in/NPC/Files/delhiOFC/EM/Hazardous-waste-management-rules-2016.pdf (last visited Jul 25, 2020). [7] The Environment (Protection) Act, 1986, No.29, Acts of Parliament, 1986 (India).

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