2005 (1) TMI 669 - SC - Customs

Whether the consignment in issue is waste oil within the meaning of the term waste oil as per Basel Convention or Hazardous Waste Rules, 1989 as amended in the year 2000 and/or as amended in the year 2003 also having regard to the relevant notifications issued on this aspect? Held that - The only appropriate course to protect environments is to direct the destruction of the consignments by incineration in terms as recommended by the Monitoring Committee. It seems that by disposal of the oil under the supervision of Monitoring Committee at the incinerators which have adequate facilities to destroy the oil at a required temperature, there would be no impact on environments. In regard to 170 containers referred to in the report of the Commissioner of Customs which are also lodged in the same premises in more or less same condition, the Monitoring Committee has noted that these containers have not been claimed by the importers. The details of the importers of these consignments are not on record. Before we issue directions in respect of these 170 containers, it would be necessary to have on record the details of these imports. The concerned authorities, i.e., Jawaharlal Nehru Port or Mumbai Port and all other concerned Departments are directed to furnish to the Monitoring Committee within four weeks up to date information as to the import of the 170 containers, how the consignment was dealt with right from the date of the arrival till date. The Monitoring Committee shall file a report along with its recommendations and on consideration thereof, necessary directions in regard to 170 containers would be issued. The aforesaid 133 containers are directed to be expeditiously destroyed by incineration as per the recommendations of the Monitoring Committee and under its supervision subject to and in terms of this order. The cost of incineration shall be deposited by the importers with the Monitoring Committee within four weeks. The Monitoring Committee will ensure the timely destruction of the oil at the incinerators mentioned in its report. After the destruction of the oil in question, a compliance report shall be filed by the Monitoring Committee. All concerned are directed to render full assistance and cooperation to the Monitoring Committee. In regard to the consignment of Eleven Star Esscon, in case option for recycling is exercised by the Government, the recycling would be done under the supervision of the Monitoring Committee. If the request for recycling is not received by the Monitoring Committee within four weeks, the said consignment would also be destroyed in the same manner as the other consignments.

Summary

Issues Involved:
1. Dumping of hazardous waste.
2. Legality of imported waste oil.
3. Environmental impact and necessary measures.
4. Compliance with Basel Convention and national laws.
5. Liability and cost of disposal.
6. Application of precautionary principle and polluter pays principle.

Detailed Analysis:

1. Dumping of Hazardous Waste:
The court addressed the alarming situation caused by the dumping of hazardous waste, emphasizing the serious and irreversible damage to the environment. A High Powered Committee (HPC) was constituted to examine all matters relating to hazardous waste.

2. Legality of Imported Waste Oil:
The court found that 133 containers of waste oil were illegally imported under the guise of lubricating oil. Laboratory tests confirmed the oil was hazardous waste. Notices were issued to the importers to show cause why the consignment should not be re-exported or destroyed at their cost.

3. Environmental Impact and Necessary Measures:
The court considered the environmental issue, focusing on appropriate directions for dealing with the consignments. The main question was whether to destroy the consignments to protect the environment or find another way to handle them.

4. Compliance with Basel Convention and National Laws:
The report of the Commissioner of Customs detailed the history of the case and various conventions and laws, including the Basel Convention. The presence of PCBs in the waste oil rendered it hazardous under national laws, despite permissible limits under the Basel Convention.

5. Liability and Cost of Disposal:
The court directed that the cost of incineration and other expenses be borne by the importers, applying the polluter pays principle. The importers were also required to pay testing charges incurred by the authorities.

6. Application of Precautionary Principle and Polluter Pays Principle:
The court emphasized the application of the precautionary principle and polluter pays principle, which are part of Indian environmental law. These principles mandate taking preventive measures to protect the environment and holding polluters financially responsible for the damage caused.

Conclusion:
The court ordered the destruction of the 133 containers by incineration under the supervision of the Monitoring Committee. The cost of incineration was to be deposited by the importers. The court also directed the authorities to provide information on an additional 170 containers of hazardous waste for further action. The judgment reinforced the importance of strict compliance with environmental laws and international conventions to prevent environmental degradation.