2005 (1) TMI 746 - SC - Indian Laws

Summary

Issues Involved:
1. Dumping of hazardous waste and its environmental impact.
2. Legality of the import of waste oil.
3. Determination of whether the imported oil is hazardous waste.
4. Appropriate disposal methods for the hazardous waste.
5. Liability and costs associated with the disposal of hazardous waste.
6. Application of the precautionary principle and polluter pays principle.
7. Potential for exemplary or penal damages against importers.

Detailed Analysis:

1. Dumping of Hazardous Waste and Its Environmental Impact:
The Supreme Court recognized the "alarming situation created by dumping of hazardous waste," which causes "serious and irreversible damage to the environment, flora, and fauna." The Court emphasized the need for prompt measures to prevent adverse consequences, leading to the constitution of a High Powered Committee (HPC) to examine hazardous waste issues.

2. Legality of the Import of Waste Oil:
The Court noted that importers illegally imported waste oil in 133 containers under the guise of lubricating oil. The oil was tested and found to be hazardous waste. The Court issued notices to the importers to show cause why the consignment should not be re-exported or destroyed at their cost and why they should not pay for the laboratory tests and compensation based on the polluter pays principle.

3. Determination of Whether the Imported Oil is Hazardous Waste:
The Commissioner of Customs, after detailed investigation and testing, concluded that the imported oil was hazardous waste. The tests revealed the presence of PCBs (polychlorinated biphenyls), making the oil hazardous under both the Basel Convention and national laws. The Court affirmed that the presence of PCBs rendered the oil hazardous, despite the importers' contention that the PCB levels were within permissible limits under the Basel Convention.

4. Appropriate Disposal Methods for the Hazardous Waste:
The Monitoring Committee recommended the destruction of the consignments by incineration due to the hazardous nature of the waste and the lack of adequate facilities for re-refining oil containing PCBs. The Court agreed with this recommendation, emphasizing that the national law's stricter conditions prevail over the Basel Convention guidelines. The Court directed the incineration of the oil under the supervision of the Monitoring Committee.

5. Liability and Costs Associated with the Disposal of Hazardous Waste:
The Court held that the importers were liable to pay the costs of incineration and the expenses incurred for testing the oil, applying the precautionary principle and polluter pays principle. The importers were directed to deposit the incineration costs with the Monitoring Committee within four weeks.

6. Application of the Precautionary Principle and Polluter Pays Principle:
The Court reiterated that these principles are part of India's environmental law. The precautionary principle mandates taking preventive measures even in the absence of full scientific certainty to prevent environmental degradation. The polluter pays principle requires the polluter to bear the costs of pollution, including environmental costs and costs incurred in avoiding pollution.

7. Potential for Exemplary or Penal Damages Against Importers:
The Court acknowledged the petitioner's contention for exemplary or penal damages but found it unnecessary to delve into this aspect due to the absence of clear findings on the nature and extent of the offending activity. The Court emphasized that in India, the liability to pay compensation for environmental harm is strict and absolute, beyond the rule in Rylands v. Fletcher.

Conclusion:
The Supreme Court directed the destruction of the hazardous waste oil by incineration, with the costs to be borne by the importers. The Court underscored the application of the precautionary principle and polluter pays principle, emphasizing the need for strict adherence to national environmental laws. The decision reflects a robust approach to environmental protection and the enforcement of legal responsibilities in cases of hazardous waste importation.