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Judgment
Satyawan Singh Garbyal, Member (E)
In this application, applicant has raised the issue of air pollution caused by ships entering into Indian waters due to burning of fuel during transport as well as while waiting in the dock yards/ports. It has been stated that the air pollutants emitted by the ships include particulate matter (PM), sulphur oxides (SOX), nitrogen oxides (NOX), carbon dioxide (CO2) carbon monoxide (CO), methane (CH4), nitrous oxide (N2O), black carbon (BC) and non-methane volatile organic compounds (NMVOC).
It has further been stated that shipping emissions are rapidly rising as trade through water-bore transport is increasing around the globe. According to the Annual Report-2016-2017 of the Ministry of Shipping, approximately 95 % of the India's trade by volume and 68 % by value is moved through maritime transport.
The emissions of these air pollutants from various sources are to be regulated under the provisions of the Environment (Protection) Act 1986 (hereinafter referred to as EP Act), the Air (Prevention and Control of Pollution) Act 1981 (hereinafter referred to as (Air Act), and the Territorial Waters, Continental Shelf, Exclusive Economic Zone and Other Maritime Zones Act 1976 (hereinafter referred as Territorial Waters Act). However, despite the legislative mandate emissions from ships remain entirely unregulated under these laws.
The gravity of air pollution from shipping was initially recognised at the international level in late 1980s and was finally given recognition in 1997. In that year, State parties to the International Convention for Prevention of Pollution from Ships, 1973, as modified by the Protocol of 1978 (commonly known as MARPOL 1973/1978) signed a Protocol to amend the MARPOL 1973/1978. This Protocol introduced Annex VI titled 'Regulations for Prevention of Air Pollution from Ships' to the Convention. Annex VI regulates Ozone depleting substances, NOx , SOx , VOC, shipboard incineration, fuel oil quality, etc., emitted from ships. Annex VI came into force on 19th May, 2005 and a revised Annex VI, with significantly tightened emissions limits, was adopted in October 2008 which came into force on 1st July, 2010.
The Central Government while exercising its powers under the Merchant Shipping Act 1958 has issued variety of rules with regard to pollution caused by ships from sewage, garbage and oil. These include:
Merchant Shipping (Control of Pollution by Noxious Liquid Substance in Bulk) Rules 2010.
Merchant Shipping (Prevention of Pollution by Harmful Substances carried by Sea in Packaged Form) Rules 2010.
Merchant Shipping (Prevention of Pollution by Sewage from Ships) Rules 2010.
Merchant Shipping (Prevention of Pollution by Garbage from Ships) Rules 2010.
Merchant Shipping (Prevention of Pollution by Oil from Ships) Rules 2010.
Farming of Merchant Shipping (Civil Liability for Oil Pollution Damage) Rules 2008.
Merchant Shipping (International Fund for Compensation for Oil Pollution Damage) Rules 2008.
However, Rules with regard to air pollution caused by ships have not been issued.
The Central Government has omitted, neglected and failed to discharge its obligations, as mandated under the Environment (Protection) Act 1986, the Air Prevention and Control of Pollution) Act 1984 and the Territorial Waters, Continental Shelf, Exclusive Economic Zone and Other Maritime Zones Act 1976. The said inaction, neglect or omission has resulted in breach of the rights of citizens to wholesome environment and is ultra vires Articles 14 and 21 read with Articles 48A and 51A(g) of the Constitution of India, in as much as, air pollution caused by ships impacts not only the marine ecology but it also adds to the pollution load of the 6000 km coastal stretches of India and its estuaries.
It has, therefore, been prayed as under:
"i. Direct the Respondents to discharge their statutory duties and regulate the air pollution being caused by Indian ships and ships entering the Indian territorial waters, the continental shelf, and the exclusive economic zone;
ii. Direct the Respondents to monitor the pollution caused by Indian ships and ships entering the Indian maritime coastal waters and submit a report to this Hon'ble Tribunal;
iii. Direct the Respondents to place on record the various actions and steps initiated by them to regulate and control air pollution caused by ships; and
iv. Pass such order/s as this Hon'ble Tribunal may deem fit and proper in the facts and circumstance of the case and in the interest of justice."
The applicant had submitted that there is no monitoring of, or data on, emissions of various pollutants including carbon dioxide, sulphur oxide, nitrogen oxide and particulate matter from Indian vessels (of all types) and foreign vessels entering Indian waters. It is imperative that the MoEF & CC along with the CPCB, Ministry of Shipping, concerned SPCB, concerned port authorities and other agencies undertake measures to monitor sources of marine air pollution and assess the quality of air in and around Indian ports and coastal cities.
The Central Pollution Control Board (CPCB), in their reply affidavit, has mentioned that the provision under the two Acts, namely EP Act and Air Act have not made any observation regarding the pollution of coastal air/environment. That all costal pollution related matter are dealt with by the Ministry of Shipping through its organisation, namely, National Shipping Board and Director General of Shipping. They have further stated that the applicant has not mentioned anywhere the operation of Gensets in the ship. However, they have prescribed limits for Hydro Carban + Nitrogen Oxide, Carbon Oxide and Particulate Matter at a manufacturing stage and the emissions limit for the DG sets (Diesel) vide Notification No. GSR 771(E) dated 11.12.2013. Petrol and Kerosene driven Gensets emission limit vide Notification No. GSR 535(E) dated 7.08.2013 and Gas based dedicated and dual fuels Gensets Engine, vide Notification No. GSR 281(E) 2016 dated 07.03.2016. They have, therefore prayed that the pollution caused by the Indian ships and ships entering in the Indian maritime coastal waters be regulated by the Ministry of Shipping and its technical branches.
The Ministry of Shipping and the Director General of Shipping, Respondent No. 3 and 4 have admitted that the Merchant Shipping Rules in respect of prevention of air pollution from ships have not been framed by the Central Government which is imperative keeping in view the fact that India has become party to Annex VI of MARPOL convention. The legislative Department, Ministry of Law and Justice, Government of India had, however, opined that Merchant Shipping Act 1958 will have to be amended before notifying such rules which is under consideration of legislature. They have further stated that in the interest of Indian shipping and protection of India maritime Environment compliance of Annex VI has been ensured by the Director General Shipping through its executive orders. As per these orders, all Indian flagships wherever they are and foreign flagships visiting Indian ports have to comply with MARCOL and Annex VI regulations and its amendments. Indian flag vessels are being inspected for compliance to MARPOL Annex VI by Indian Maritime Administration through Flag State Inspections and by its Recognized Organizations (ROs) through statutory surveys and certification, in line with the requirements of International Maritime Organization (IMO), a Specialized Agency of United Nations acting as an International merchant shipping regulator. Foreign flag vessels visiting Indian ports are being inspected for strict compliance on MARPOL Annex VI during Port State Control Inspections carried out by Indian Maritime Administration.
The Ministry of Shipping and Director General of Shipping, Respondent No. 3 and 4 have further stated in their reply that Annex VI of MARPOL 1973/1978 came into force on 19th May, 2005. India acceded to Annex VI on 23.11.2011 and it came into force from 23.02.2012. The Directorate General of Shipping enforced this Annex VI through various executive orders which were amended from time to time due to amendments in MARPOL Annex VI. The Circulars which currently address enforcement of MARPOL Annex VI are M.S. Notice 02 of 2012 dated 19.01.2012, Engineering circular No. 01 of 2012 dated 30.01.2012, Engineering circular No. 09 of 2012 dated 10.12.2012 and M.S. Notice 03 of 2014 dated 19.03.2014 (registration as bunker suppliers).
That in order to enforce the requirements as contained in the MARPOL Annex VI, the DGS and the Ministry of Shipping has authorised Port State Control Officers (PSCOs) to conduct physical inspection of both Foreign Flag State Vessels as well as of the Indian Vessels.
It is also submitted that the PSCOs are well equipped to verify the contents of the MARPOL compliance certificates. The verification method is agreed by all the Administrations. The Port State Control officers conduct actual physical inspections and corroborate their results with the ones as specified in the certificates (MARPOL Annex VI) of Foreign Ships visiting Indian Ports. The following is the procedure followed in the inspection to check the compliance with the MARPOL Annex VI requirements:
"A) For Sox
Among all the emission sources, Sox emissions are directly linked to the Sulphur content present in the fuel. A new 0.5 % sulphur cap will be implemented from 1st January, 2020 lowering from the present 3.5 % sulphur limit.
The verification of this requirement is carried out by on board verification of Bunker delivery note which is issued while supplying the Bunkers and also with latest fuel oil test reports which has to be retained on board. Further, if required, onboard fuel oil can be taken as sample for testing by PSCIs. The true copy of the Bunker Delivery Note is attached herewith as. Annexure C-5.
B) For Nox: Following three methods are approved:
i. Onboard Parameter Check Method.
This method uses performance parameters, settings of combustion related parts and component data stipulated within the Technical file to ensure compliance. The parameter method is predominantly used and is based on the principle that if the engine complied with Nox parameters at the time of engine trials should continue to comply if there are no modifications/adjustment made to the engine.
ii. On board Simplified Measurement Method.
A range of engine parameters are regularly measured, recorded and then the Nox levels calculated from this using a pre-defined formulae set out in the Nox technical file. Specific requirements include location, calibration and decimal places of sensors together with sampling methods of fuels and gases.
iii. Onboard direct Measurement and Monitoring Method."
This involves calibrated emission detectors located within the exhaust stream.
The procedure to verify on board compliance is provided in the Nox technical file. In general, engine parameter check method is preferred over direct/simplified measurement for its simple, logical and cost effective way of verification.
The True copy of the checklist for MARPOL 79/78 Inspection is marked and annexed herewith as Annexure - C6.
C) For Co2 emissions
This Method is based on the principle that Co2 emissions are directly proportional to type and amount of fuel in use and the emission factor is derived as mass based factor using corresponding Specific Fuel Oil consumption. It is pertinent to note that unlike Nox and Sox emissions there are no directly prescribed limits for Co2 emissions in MARPOL convention. MARPOL convention addresses Co reductions in the design and operational stages by targeting reductions of fuel consumption there by reducing Coe emissions of fuel consumption there by reducing Co2 emissions for marine engines fitted on vessels.
The two ways in which Co2 emission reduction is targeted in shipping for low carbon future:
i) EEDI-Energy Efficiency Design Index, IMO has set goals and phase wise targets to decrease EEDI by 10 % every 5 years. This approach will force engine manufacturers to come up with innovative design of equipment and system while considering renewable and non-renewable energy to decrease EEDI in order to make fuel efficient ships in the design stage.
ii) EEOI-Energy Efficiency Operational Index, an administration approved SEEMP (Shipboard Energy Efficiency Management Plan) needs to be implemented for operating the ship in an energy efficient way during its operation. This plan needs to be implemented for continuing the validity of International Energy Efficiency Certificate. (See a copy SEEMP in Annex IV)
D) CO, N2O are directly proportional to fuel consumed and Particulate matters mainly depend upon sulphur content in the fuel. Hence addressing section (a) and (c) invariably addresses all the other minor emissions and hence there are no prescribed limits for these minor emissions in MARPOL convention"
It is also submitted that the Director General of Shipping recovers fees from the ships which are found to be non-compliant with the provisions as laid out in MARPOL Annex VI. The Director General of Shipping has amended the fee structure vide its D.G. Shipping Circular No. 13 of 2010 dated 06.09.2010 owing to the reason that the fee structures prescribed in the DGS Circular No. 1 of 2004 dated 01.01.2004 were more than six years old and so the fee structure was amended after taking into account, the feedback obtained from concerned branches. The fee recovered from the Indian flag ships and foreign flag ships on account of possession of forged statutory certificates including certificates of competency of seafarers and on account of operating without safety/pollution prevention certificates during their flag state or Port State Control Inspections, as applicable, is described in detail at serial No. 25 of the annexure of the D.G. Shipping Circular No. 13 of 2010 dated 06.09.2010. The True copy of the D.G. Shipping Circular No. 13 of 2010 dated 06.09.2010 and annexure attached to the D.G. Shipping Circular No. 13 of 2010 dated 06.09.2010 are marked and annexed herewith as Annexure - C7 and Annexure-C8
MARPOL 1973/1978 deals with prevention of pollution from ships for following category of substances:
"a. Annex I deals with prevention of pollution by oil from ships;
b. Annex II deals with prevention of noxious liquid substances in bulk from ships;
c. Annex III deals with prevention of pollution by harmful substances carried by sea in packaged;
d. Annex IV deals with prevention of pollution by sewage from ships;
e. Annex V deals with prevention of pollution by garbage from ships; and
f. Annex VI deals with prevention of air pollution from ships."
It is stated that with respect to Laws applicable to air pollution for Indian Flag and Foreign Flag vessels, the Directorate General of Shipping (DGS) has issued Engineering circular 01 of 2012 dated 30.01.2012 wherein it is made clear that all the stakeholders are to comply with MARPOL Annex VI. Further all the R.O's (Registered Organizations) were informed to issue new certificates, as per MARPOL Annex VI to all the vessels which are in compliance to MARPOL Annex VI. With the said executive order, DGS is enforcing requirements of MARPOL Annex VI for both Indian and Foreign flag vessels.
Further, DGS has stated in its executive order that MARPOL Annex VI needs to be complied with and hence all the norms stipulated in MARPOL Annex VI will be applicable and invariably becomes the norms prescribed by DGS, Informatively, Reg 12 of MARPOL Annex VI deals with Ozone depleting substances, Reg 13 of MARPO Annex VI deals with pollution form NOX (Nitrogen Oxides), Regulation 14 of MARPOL Annex VI deals with pollution from SOX (Sulphur Oxides), Regulation 15 of MARPOL Annex VI deals with volatile organic compounds emitted from tankers, Regulation 20 of MARPOL Annex VI deals with efficient design of ships to control GHG emissions Regulation 22 of MARPOL Annex VI deals with efficient operation of ships to minimize GHG emissions.
DGS has prescribed norms vide M.S. Notice 02 of 2012 dated 19.01.2012 to regulate air pollution by vessels registered under M.S. Act and exclusively plying within 12 Nautical Miles from the sea shore.
It is an admitted fact that there is no effective check and monitoring of air pollution caused by Indian ships and also by foreign ships entering into Indian Maritime Zone. As of now these are being monitored only through the circulars issued by the Director General of Shipping. It is also an admitted fact that after India had acceded to the MARPOL convention, only 12 ships have been intercepted during 5 years, since 2012. It is also an admitted fact that MARPOL do not cover fishing vessels fitted with mechanical means and registered under Merchant Shipping Act. There are no standards for such vessels as their engine capacity is lower than what is covered by MARPOL on nitrogen oxide (NOX) emissions. According to them particulate matter and sulphur oxide emissions depend on sulphur content which according to the Director General of Shipping is very low in marine gas oil used by these vessels.
The procedure for issuance of International Air Pollution Prevention (IAPP) certificate under the MARPOL as given by the Respondent No. 3 and 4 is applicable to every ship with 400 gross tonnage and above and every fixed and 14 drilling rigs. Therefore, ships with gross tonnage less than that currently remain unregulated.
It is, therefore, amply clear that as of now there is no effective monitoring of and regulation on the emissions caused by the Indian vessels as well as foreign vessels which are entering Indian Maritime Zone in absence of any effective rules which are said to be under consideration of legislature since last 7 years.
We, therefore, direct as below:
i. All the Indian vessels and Foreign vessels entering into Indian Maritime Zone will be subjected to relevant provisions of the Environment (Protection) Act, 1986; the Air (Prevention and Control of Pollution) Act, 1981, as well as rules framed thereunder until comprehensive Indian Merchant Shipping Rules come into force.
ii. The various regulatory authorities charged with the responsibilities under the Environment (Protection) Act, 1986, Air (Prevention and Control of Pollution) Act, 1981, and rules made thereunder, the Central Pollution Control Board and the State Pollution Control Boards will regulate the air as well as various other pollution caused by the Indian vessels as well as the Foreign vessels entering into Indian Maritime Zone.
iii. Ministry of Shipping and Director General of Shipping are directed to come out with a comprehensive Merchant Shipping rules which will not only include merchant ships but also the fishing vessels which use gensets of capacities mentioned in the various notifications of the MoEF & CC within a period of one year from hence.
With the abovementioned directions, this Original Application No. 433/2017 is disposed of. The Miscellaneous Application No. 1261/2018 does not survive for consideration as the main application itself is disposed of.