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TMI Blog2005 (1) TMI 669X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ties to appreciate the gravity of situation and the need for prompt measures being taken to prevent serious and adverse consequences, a High Powered Committee (HPC) was constituted by this Court with Prof. M.G.K. Menon as its Chairman, in terms of order dated 30th October, 1997. The Committee comprised of experts from different disciplines and fields and was required to examine all matters in depth relating to hazardous waste. 2.On consideration of the detailed reports submitted by the HPC various directions have been issued by this Court from time to time. Presently, we are concerned with the presence of hazardous waste oil in 133 containers lying at Nhava Sheva Port as noticed by HPC. On the directions of this Court, the oil contained in the said 133 containers was sent for laboratory test to determine whether same is hazardous waste oil or not. It has been found to be hazardous waste. 3.On consideration of report of HPC, the result of laboratory test and entire material on record, this Court came to the prima facie conclusion that importers illegally imported waste oil in 133 containers in the garb of lubricating oil. In terms of the order dated 25th September, 2003, not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , learned Additional Solicitor General appearing for the Ministry of Environment and Forests as also learned Counsel appearing for the Commissioner of Customs and other learned Counsel representing the importers. It deserves to be noted that the question to be determined in these proceedings is limited to the environment issue. The issue is in regard to the appropriate directions for dealing with the consignments in question, having regard to the precautionary principle and polluter pays principle. The main question is whether directions shall be issued for the destruction of the consignments with a view to protect the environment and, if not, in what other manner the consignments may be dealt with. 6.The report of the Commissioner of Customs sets out a brief history of the case, history of various Conventions and Laws formulated thereupon from time to time, correlating the same to the various test findings. The brief history, inter alia, states that : In the month of August-September 2000, the Central Intelligence Unit, New Custom House, Mumbai developed intelligence that large volumes of Furnace Oil were to be imported as containerized cargo, at the Jawaharlal Nehru Po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nternational, were accordingly forwarded to CRCL for testing and their opinion on 24-8-2000. The test results forwarded by the CRCL in all the 14 samples indicated that none of the samples tallied with the specifications of Furnace Oil and all were off specification material i.e. waste oil. Thereafter the CIU seized all the consignments involving 158 containers. One consignment comprising of 25 containers was conditionally released on execution of Bank Guarantee for the differential Duty. Thus a total of 133 containers were left. .. .. On 5-10-2001 the MPCB forwarded a final report from the IIP to the Custom House wherein it was stated that the halogen content tests were done at the Shriram Institute of Industrial Research (SIIR), New Delhi and the PCB content tests were done at the National Institute of Oceanography, Goa. The report concluded that all the 20 samples sent to the IIP were found to be hazardous. In all these cases, where SCNs had earlier been issued, addendums were issued afresh keeping in view the fact that since hazardous wastes imported in violation of the provisions of the Environment (Protectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this category deals with Waste mineral oils unfit for their originally intended use. It is nobody s case that the material imported is not mineral oil or of mineral origin. In other words the category of Wastes to be concentrated upon is A 3020 as it specifically deals with mineral oils. After identifying the exact category of the material it remains to be seen whether the imported material possesses any of the characteristics as mentioned in Annex III to the Convention. All the test reports obtained from the Indian Institute of Petroleum, Dehradun; indicate that the materials have PCB. In respect of the impact of the presence of PCBs on the waste oil, reference is made to the Technical Guidelines on Hazardous Waste: Waste Oils from Petroleum Origins and Sources (Y8) issued by the Basel Convention. Paragraph 10, outlining the characteristics of PCBs is reproduced for reference - Particular concern centers on a family of substances known as polychlorinated biphenyls (PCBs) which combine excellent insulation and heat transfer characteristics, with high stability and non-inflammability. However they are environmentally extremely persistent and bio-accumulative, toxic (and a s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... merated in Part B of Schedule 3. The presence of PCB contents in Waste mineral oils renders the material carcinogenic, bio accumulative and ecotoxic. Therefore, any consignment of Waste mineral Oil having PCB would be rendered Hazardous. (Emphasis supplied). 8.Thus, from the rules, it is clear and evident that the presence of PCB contents in any consignment of waste mineral oil would render such oil as hazardous waste. 9.On the aforesaid basis, most of the consignments have been found to be hazardous waste. The only consignment imported by Eleven Star Esscon was found not to be hazardous but off specification fit for re-refining. In respect of one container of Oil imported by Royal Implex though the samples were not sent to the IIP for further analysis in respect of Organic halides and PCB determination, the report concluded that it would not be advisable to conduct those tests at that late stage as the prolonged storage may have deteriorated material further and on the basis of the test results available it was obvious that the material was not fit for re-refining. 10.The report of the Commissioner of Customs has characterized the goods as hazardous waste. The conc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... one-time measure was examined. 13.Regarding the disposal of the imported hazardous waste, the report states that certain drastic one-time measures are required to be taken. Both the modes of disposal, i.e. by subjecting the waste to re-cycling and alternatively by incinerating it, were examined. It has been suggested that overlooking the PCB presence up to 50 ppm, if the waste oil conformed to the other specifications mentioned in Schedule 6, then such consignments may be considered for recycling. These consignments could be adjudicated and released to the importers only under the condition that they would get the material recycled, under the control and supervision of the Central Pollution Control Board authorities, in Units registered with MOEF and having consent/authorization from by the State Pollution Control Board. Further suggestion is that consignments not conforming to the specifications of Schedule 6 and/or having PCB in excess of 50 ppm may be subjected to incineration at the importer's cost at the Hazardous Incinerator under supervision of the State Pollution Control Board. In cases where the cargo is required to be incinerated, besides cleaning the pollution ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Monitoring Committee. The Monitoring Committee has recommended disposal of all consignments except one by incineration in consultation with two Pollution Control Boards mentioned in its report. It has noticed that adequate facilities are not available even with registered refiners for re-refining oil containing PCBs. Notice has also been taken of the fact that the Director, IIP, Dehradun has mentioned that since all 133 containers have been lying at Mumbai Port since 2000, the oil would have undergone considerable degradation in last four years. Another important factor that has been taken into consideration is about the cost of re-refining being exorbitant and, therefore, it was not economically feasible to re-refine the oil in question. 19.In respect of consignments of category one, learned Counsel for importers sought to contend that PCBs were within the limits prescribed by the Basel Convention and also that the same were of small quantity, it being minimal and negligible and, therefore, the recommendation of the Monitoring Committee for destruction of oil by incineration does not deserve to be accepted. Reference was also made to Technical Guidelines on Hazardous Waste: Wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng oil containing PCBs. That apart, oil regeneration technologies depend to some degree of quality of waste oil. Regeneration process involves the application of reasonably sophisticated technology and require care and expertise in their operation. The illegally imported oils remained on the Port for four years and would have undergone considerable degradation during this period. Nothing tangible has been shown so as to take a view different than the one recommended by the Monitoring Committee. 21.Learned Counsel appearing for Royal Impex contended that in the consignment imported by it only Ash contents were more as per the test report on record and, therefore, the consignment may be released to the importer. It was also contended that the sample was not sent to IIP for further test in respect of organic halides and PCB determination. The report, however, states that it may not be feasible to conduct those tests now as prolonged storage may have deteriorated the material further. According to the report of the Commissioner of Customs on the basis of the test results available, the material was not fit for recycling. Our attention was drawn by learned Counsel for the importer t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... limits, there were no organic halides and the PCBs and the consignment has been found to be fit for recycling, we feel that the recycling deserves to be permitted as recommended by Commissioner of Customs but the same shall be done under the supervision of the Monitoring Committee. Having so permitted, we may note that the cost of recycling may be very exorbitant and it may not be economically viable. If recycling is not considered advisable by the Government, the consignment shall have to be destroyed by incineration in the same manner as other consignments. The decision whether the Government desires the consignment to be recycled shall be taken within a period of four weeks failing which the consignment shall be destroyed by incineration along with other consignments. The cost of incineration shall be paid by the Government. 23.According to the Monitoring Committee, the cost of incineration will be at the rate of Rs. 12/- per kilo which also include the cost of transport to be paid by the importers in advance. 24.The liability of the importers to pay the amounts to be spent for destroying the goods in question cannot be doubted on applicability of precautionary principle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of environment would not be correct, is evidently confined to the facts of that case. In the said case the fact that the industrial units had not conformed with the standards prescribed by the pollution control board was not in dispute but there was no finding that the said circumstance had caused damage to environment. The decision also cannot be said to have laid down a proposition that in absence of actual degradation of environment by the offending activities, the payment for repair on application of the polluter pays principle cannot be ordered. The said case is not relevant for considering the cases like the present one where offending activities has the potential of degrading the environment. In any case, in the present case, the point simply is about the payments to be made for the expenditure to be incurred for the destruction of imported hazardous waste and amount spent for conducting tests for determining whether it is such a waste or not. The law prescribes that on the detection of PCBs in the furnace or lubricating oil, the same would come within the definition of hazardous waste. Apart from polluter pays principle, support can also be had from principle 16 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... absolute liability in case of an enterprise engaged in hazardous and dangerous activity. Law has to grow in order to satisfy the needs of the fast-changing society and keep abreast with the economic developments taking place in the country. Law cannot afford to remain static. The Court cannot allow judicial thinking to be constricted by reference to the law as it prevails in England or in any other foreign country. Though the Court should be prepared to receive light from whatever source it comes but it has to build up its own jurisprudence. It has to evolve new principles and lay down new norms which would adequately deal with the new problems which arise in a highly industrialized economy. If it is found that it is necessary to construct a new principle of liability to deal with an unusual situation which has arisen and which is likely to arise in future on account of hazardous or inherently dangerous industries which are concomitant to an industrial economy, the Court should not hesitate to evolve such principle of liability because it has not been so done in England. An enterprise which is engaged in a hazardous or inherently dangerous industry which poses a potential threat to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f sustainable development. 33.In this very case, i.e., Research Foundation For Science Technology National Resource Policy v. Union of India Anr. [2003 (9) SCALE 303] while examining the precautionary principle and polluter pays principle, the legal principles noticed in brief were :- The legal position regarding applicability of the precautionary principle and polluter pays principle which are part of the concept of sustainable development in our country is now well settled. In Vellore Citizens Welfare Forum v. Union of India Ors. [(1996) 5 SCC 647], a three Judge Bench of this Court, after referring to the principles evolved in various international conferences and to the concept of sustainable development , inter alia, held that the precautionary principle and polluter pays principle have now emerged and govern the law in our country, as is clear from Articles 47, 48A and 51A(g) of our Constitution and that, in fact, in the various environmental statutes including the Environment (Protection) Act, 1986, these concepts are already implied. These principles have been held to have become part of our law. Further, it was observed in Vellore Citizens Welfare Forum' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an health is also a right which flows from Article 21. The Government and authorities have, thus to motivate the public participation. These well-shrined principles have been kept in view by us while examining and determining various aspect and facets of the problems in issue and the permissible remedies. 34.The aforenoted precautionary principles are fully applicable to the facts and circumstances of the case and we have no manner of doubt that the only appropriate course to protect environments is to direct the destruction of the consignments by incineration in terms discussed above and as recommended by the Monitoring Committee. 35.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. 36.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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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