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

PETITIONER: Research Foundation for Science

RESPONDENT: Union  of India and Anr

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

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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

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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

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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 breaking   needs to be quoted:

"3.     Upon entry into the Port area, a ship is allowed to be  anchored 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.

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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

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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 the  protection 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.

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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

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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.  There 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

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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.

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(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.