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ACKNOWLEDGEMENT
It is my profound privilege to express my deep sense of gratitude to Ms Sabina Salim for her encouragement in the present project work. I fail to found suitable words with which I should express m sincere thanks to her for giving me an opportunity to undertake this project. I am thankful to her for helping me in any problem regarding this project, providing with all necessary facilities and her enlightening guidance. I highly appreciate meticulous and patient effort of her, which went away long in bringing this project to its present form.

Arun Sayal 13/06

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Index
S.No. 1. 2. 3. 4. 5. 6.
Authorities Referred Introduction The Origins of the Basel Convention Historical Background Basel convention Why the Basel Convention was created? How Basel Convention works?

Particulars

Page No.
3 4 5 6. 7 10

7.

Objectives of Basel Convention General obligations under the Convention

11

8. 9. 10.

Procedure for Handling Hazardous Wastes Basel Ban Amendment Effect of Ban by Convention

13 14 15

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11. 12. 13. 14 Conclusion:
Research Foundn for Science v. Union of India (UOI) Research Foundation for Science Technology and Natural Resources Policy v. Union of India (UOI) and Anr.

16 17 22 33

Bibliography

Index of authorities

Research Foundation for Science, Technology and Natural Resource Policy v. Union of India and others

M.C. Mehta v. Union of India, AIR 1987 SCC 965 at 981.

Research Foundn for Science v. Union of India (UOI) and Anr.

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Research Foundation for Science Technology and Natural Resources Policy

v. Union of India (UOI) and Anr

Introduction:
Industry and its products have an impact on the natural resources base of civilization through the entire cycle of raw material exploration and extraction, transformation into products, energy consumption, waste generation, and the use and disposal of products by consumers. These impacts may be positive, enhancing the quality of a resource or extending its uses or they may be negative, as a result of process and product pollution and of depletion or degradation of resources.1 Pollution problems that were once local are now regional and global in scale. The incidence of major accidents involving toxic chemicals has grown. Discoveries of hazardous wastes disposal sites have drawn attention to other serious problems. Industrialized countries generate about 90 % of the worlds hazardous wastes. Chemical and other hazardous industries has become a pressing problem in the modern industrial society. It is also necessary to point that when science and technology are increasingly employed in producing goods and services calculated
1

Our Common future The world Commission on Environment and Development, 208 (1987).

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to improve the quality of life, there is certain elements of hazard or risk inherent in the very use of science and technology and it is not possible to totally eliminate such hazards or risks altogether. We cannot possibly adopt a policy of not having any chemical or other hazardous industries merely because they pose hazards or risks to the community. If such a policy were adopted, it would mean the end of all progress and development. Such industries, even if hazardous have to be set up since they are essential for economic development and advancement of well being of the people. We can only hope to reduce the element of hazards or risks to the community by taking all necessary steps for locating such industries in a manner, which would pose least risk or danger to the community and maximizing safety requirement in such industries.2

The Origins of the Basel Convention:

The Basel Convention of 1989 was in response to a series of incidents involving dumping of hazardous wastes in developing countries in Africa and Asia. The hazardous wastes originated in developed countries and were transported, in some cases, under false representation. The Convention aims to do the following3: 1. Reduce transboundary movements of hazardous waste to a minimum. 2. Ensure that hazardous wastes should be treated and disposed of as close as
M.C. Mehta v. Union of India, AIR 1987 SCC 965 at 981. 3 Trade The Basel Conventions Impact on International Commerce, Competitive Enterprise Institute, Environmental Studies Programme, October 1996 ISSN#1085-9047
2

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possible to their source of generation. 3. Minimize hazardous waste generation at source. The preamble clearly communicates the desire of the parties to the Convention to introduce restrictions and bans on trade Recognizing also the desire for the prohibition of transboundary movements of hazardous wastes and their disposal in other states, especially developing countries4.

Historical Background:
With the tightening of environmental laws in developed nations in the 1970s, disposal costs for hazardous waste rose dramatically. At the same time, globalization of shipping made transboundary movement of waste more accessible, and many Less Developed Countries (LDC) were desperate for foreign currency. Consequently, the trade in hazardous waste, particularly to LDCs, grew rapidly. One of the incidents which led to the creation of the Basel Convention was the Khian Sea waste disposal incident, in which a ship carrying incinerator ash from the city of Philadelphia in the United States after having dumped half of its load on a beach in Haiti, was forced away where it sailed for many months, changing its name several times. Unable to unload the cargo in any port, the crew was believed to have dumped much of it at sea.

4 Basel Convention document, Preamble as adopted by the Conference of Plenipotentiaries on 22 March, 1989 and in force effective 5 May, 1992.

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Another is the 1988 Koko5 case in which 5 ships transported 8,000 barrels of hazardous waste from Italy to the small town of Koko in Nigeria in exchange for $100 monthly rent which was paid to a Nigerian for the use of his farmland. These practices have been deemed "Toxic Colonialism" by many developing countries. In May of 2005, 60 containers were seized that were on their way from the United Kingdom to China.6 The containers seized by Dutch authorities were suppose to be for paper but actually contained household wastes. Since neither the UK, China, or Dutch had not agreed to the importation of the wastes, the waste was shipped back. According to Maureen Walsh in "The global trade in hazardous wastes: domestic and international attempts to cope with a growing crisis in waste management" 4% of hazardous wastes that come from OECD countries are actually shipped across international borders. These wastes include, among others, chemical waste, radioactive waste, municipal solid waste, asbestos, incinerator ash, and old tires. Of internationally-shipped waste that comes from developed countries, more than half is shipped for recovery and the remainder for final disposal. Increased trade in recyclable materials has led to an increase in a market for used products such as computers. This market is valued in billions of dollars. At issue is the distinction when used computers stop being a "commodity" and become a "waste".

Basel Convention:
5 Developing International Norms for the Transboundary Movement of Hazardous Waste, 8 J. NAT. RESOURCES & ENVTL. L. 121, 121-22, 127-30, 142 (1992). 6 "The Basel Convention At A Glance." <http://www.basel.int/convention/bc_glance.pdf>

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The Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal is the most comprehensive global environmental treaty on hazardous and other wastes. It has 170 member countries (Parties) and aims to protect human health and the environment against the adverse effects resulting from the generation, management, transboundary movements and disposal of hazardous and other wastes. Basel Convention, is an international treaty that was designed to reduce the movements of hazardous waste between nations, and specifically to prevent transfer of hazardous waste from developed to less developed countries (LDCs). It does not, however, address the movement of radioactive waste. The Convention is also intended to minimize the amount and toxicity of wastes generated, to ensure their environmentally sound management as closely as possible to the source of generation, and to assist LDCs in environmentally sound management of the hazardous and other wastes they generate. The Convention was opened for signature on 22 March 1989, and entered into force on 5 May 1992. Of the 172 parties to the Convention, Afghanistan, Haiti, and the United States have signed the Convention but have not yet ratified it. Transboundary Movement means any movement of hazardous wastes form an area under the jurisdiction of our country to or through an area under the jurisdiction of another country or to or through an area not under the jurisdiction of any country, provided at least two countries are involved in the movement.7

Hazardous waste:
7

Rule 3(za).

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Section 2 (e) of the Environment (Protection) Act defines Hazardous Substance as under: Hazardous substance means any substance or preparation which by reason of its chemical or physic-chemical properties or handling, is liable to cause harm to human beings, other living creatures, plants, micro-organism, property or the environment. Early definitions of the Convention referred to properties, elements etc that render a substance hazardous. Ships destined for disposal have been classified as hazardous waste. An expert committee in India8, working under instructions from the Supreme Court, discovered that about 1% of a ships physical constituents comprise hazardous substances as per existing definitions of the Convention. A waste will fall under the scope of the Convention if it is within the category of wastes listed in Annex I of the Convention and it does exhibit one of the hazardous characteristics contained in Annex III. In other words it must both be listed and contain a characteristic such as being explosive, flammable, toxic, or corrosive. The other way that a waste may fall under the scope of the Convention is if it is defined as or considered to be a hazardous waste under the laws of either the exporting country, the importing country, or any of the countries of transit.

Import and export of Hazardous waste:

8 Report of the High Powered Committee on Management of Hazardous Wastes, pursuant to writ petition No: 657/95, Supreme Court of India, Research Foundation for Science, Technology and Natural Resource Policy v. Union of India and others, Page 83

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The Ministry of Environment and Forest shall be the nodal Ministry to deal with the Transboundary movement of the hazardous wastes and to grant permission for transit of the hazardous wastes through any part of India.9 Rule 13 provide that no import of the hazardous waste from any country to India for disposal shall be permitted. The import of hazardous waste from any country shall be permitted only for the recycling or recovery or reuse. The export of hazardous wastes from India may be allowed to an actual user of the wastes or operator of a disposal facility with the Prior informed Consent of the Importing country to ensure environmentally sound management of the hazardous waste specified in Schedule IV shall be permitted.10

Why the Basel Convention was created?

The cross-border transport of hazardous wastes seized the publics attention in the 1980s. The misadventures of toxic ships such as the Katrin B and the Pelicano, sailing from port to port trying to offload their poisonous cargoes made the frontpage headlines around the world. These tragic incidents were motivated in good part by tighter environmental regulations in industrialized countries. As the costs of waste disposal skyrocketed, toxic traders searching for cheaper solutions started shipping hazardous wastes to Africa, Eastern Europe and other regions. Once on shore, these waste shipments were dumped indiscriminately, spilled accidentally or managed improperly, causing severe health problems even death9 Rule 12. 10 Rule 13

(4).

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and poisoning the land, water and air for decades or centuries. To combat these practices, the Basel Convention was negotiated under the auspices of the United Nations Environment Programme in the late 1980s. It was adopted in 1989 and entered into force in 1992.

How Basel Convention works?

Firstly, the Basel Convention regulates the transboundary movements of hazardous and other wastes applying the Prior Informed Consent procedure (shipments made without consent are illegal). Shipments to and from non-Parties are illegal unless there is a special agreement. Each Party is required to introduce appropriate national or domestic legislation to prevent and punish illegal traffic in hazardous and other wastes. Illegal traffic is criminal. Secondly, the Convention obliges its Parties to ensure that hazardous and other wastes are managed and disposed of in an environmentally sound manner (ESM). To this end, Parties are expected to minimize the quantities that are moved across borders, to treat and dispose of wastes as close as possible to their place of generation and to prevent or minimize the generation of wastes at source. Strong controls have to be applied from the moment of generation of a hazardous waste to its storage, transport, treatment, reuse, recycling, recovery and final disposal.

Objectives of Basel Convention:

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The goal is to protect human health and the environment against the ill-effects of generating and handling hazardous and other wastes, and form moving them across boundaries. Other objectives include: 1. Reducing trans-boundary movements of wastes to the minimum, consistent with managing them in environmentally sound and effective ways, and controlling those permitted under the terms of the Convention. 2. Minimizing the amount if hazardous wastes that are generated, and ensuring that they are manage in environmentally sound ways. 3. Helping developing countries with the environmentally sound management of the hazardous and other wastes they generate.

General obligations under the Convention:

it is prohibited to export or import hazardous wastes or other wastes to or from a non-party State; no wastes may be exported if the State of import has not given its consent in writing to the specific import; information about proposed transboundary movements must be

communicated to the States concerned, by means of a notification form, so that they may evaluate the effects of the proposed movements on human health and the environment;

transboundary movements of wastes must only be authorized where there is no danger attaching to their movement and disposal;

wastes which are to be the subject of a transboundary movement must be packaged, labeled and transported in conformity with international rules, and

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must be accompanied by a movement document from the point at which a movement commences to the point of disposal.

The Basel Convention vis--vis sovereign laws of a nation:

The basis of the Basel Convention has been in countries exporting hazardous and toxic waste and dumping it on unsuspecting importers, typically developing countries with weak governments and monitoring mechanisms. The Convention through its various meetings has recognized the distinction between substances that have further economic value and substances that do not. The heightened consciousness of environmental issues through the past two decades has resulted in several regional and bilateral measures by countries, including developing countries, on trade in such substances. Developing countries such as India with democratically elected governments and some levels of monitoring institutions can monitor to a fair degree, the usage, movement and handling of hazardous wastes. The legal frameworks and existing laws are by and large acceptable from a domestic viewpoint. As with most developing countries, enforcement is often an issue. However, there are no multi lateral treaties that are based on bad government. (may be a ban on imports from countries with bad government as defined by Annex VII countries would be next on Basels agenda.) The Basel Convention seeks to circumvent the sovereign rights of a developing country to import hazardous substances under regulation as critical inputs to domestic industry. ------------------------- Environment law--------------------------

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Procedure for Handling Hazardous Wastes:
Responsibility of the occupier for handling of Hazardous Waste Rule 4 of Hazardous Wastes (Management, handling and Transboundary Movement) Rules, 2008 provides that the occupier shall be responsible for safe and environmentally sound handling of hazardous wastes generated in his establishment. The hazardous wastes generated in the establishment of an occupier shall be sent or sold to a recycler or reprocessor or reuser registered or authorized under these rules or shall be disposed of in an authorized disposal facility. The hazardous waste shall be transported in accordance with the provisions of these rules. The occupier or any other person acting on his behalf who intends to get his hazardous wastes treated and disposed of by the operator of a Treatment, Storage and Disposal facility shall give to the operator of a facility, such information as maybe determined by the State Pollution Control Board. The occupier is required to take all adequate steps while handling hazardous waste to: (i)
(ii)

Contain

contaminants

and

prevents

accidents

and

limit

their

consequences on human beings and the environment; and Provide training, equipment, and necessary information to persons working on the site to ensure their safety.11

Basel Ban Amendment:

After the initial adoption of the Convention, some LDCs and environmental organizations argued that it did not go far enough. Many nations and NGOs argued for a total ban on shipment of all hazardous waste to LDCs. In particular, the original Convention did not prohibit waste exports to any location except
11

Rule 4

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Antarctica but merely required a notification and consent system known as "prior informed consent" or PIC. Further, many waste traders sought to exploit the good name of recycling and begin to justify all exports as moving to recycling destinations. Many believed a full ban was needed including exports for recycling. Lobbying at the 1995 Basel conference by LDCs, Greenpeace and key European countries such as Denmark, led to a decision to adopt the Basel Ban Amendment to the Basel Convention. Not yet in force, but considered morally binding by signatories, the Amendment prohibits the export of hazardous waste from a list of developed countries to developing countries. The Basel Ban applies to export for any reason, including recycling. An area of special concern for advocates of the Amendment was the sale of ships for salvage, shipbreaking. The Ban Amendment was strenuously opposed by a number of industry groups as well as nations including Australia and Canada.

Effect of Ban by Convention:

The measures used under the Convention include trade bans and restrictions. This is against the principles of the WTO or indeed the principles of free trade. Further, it has enacted measures that will create exclusive clubs of trade, particularly amongst the developed world. Simultaneously it has created circumstances that are inherently discriminatory against developing countries.

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Further, the manner in which such bans and anti-trade measures have been imposed have been contrary to practices of such multi-lateral forums and through minority action. It is possible for a small minority of members to enforce trade regimes on the entire international community. The Basel Ban in fact would require votes from less than 30% of the Basel membership to become law. This manner of functioning, under pressure from non-governmental groups including Greenpeace, lends itself to political machinations. Further it increases the role of such non-governmental groups who have no accountability for their actions either to national governments, or worse, the people they seek to help in the developing world. This is a dangerous trend and precedent. The manner in which the Convention has sought to effect its bans etc is in complete violation of the sovereign rights of nations to chose their approach. It is also dismissive of domestic legal and regulatory regimes that govern environment and health. Though Basel has been successful in bringing attention to problems associated with international hazardous waste movement, wealthy countries continue sending hazardous waste to countries that are not equipped for safe disposal.

Conclusion:
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market principles, economic realities of developing countries, and that are counterproductive to the objectives of the Convention. Basel has been a success in that it provides a forum for transboundary hazardous waste issues. Also, regulations banning hazardous wastes in electronics can be somewhat attributed to Basels existence. But, electronic waste from the U.S. was found dumped in environmentally unsafe ways in Nigeria in 2006. Even more, though EU has implemented legislation to enforce Basel, 48 percent of shipments were found to be illegal during a week long investigation of seventeen ports in nine EU countries in 2005. Shipments included containers of domestic waste from the United Kingdom destined for India and cable wastes from Sweden bound for China. Instead of relying on Basel to prevent unsafe hazardous waste management, Basel advocates should pursue with greater force the minimization of generation and, especially in countries where citizens are vulnerable, development of NGOs. Despite some loopholes and ambiguities, the Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal (Basel, 22 March 1989) should be considered a major achievement in international environmental law. One of its main merits is the establishment of the concept of prior informed consent, according to which the State of export must previously notify any intended movement of hazardous waste to the State of import.

IN THE SUPREME COURT OF INDIA

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__________________________________________________________________ Research Foundn for ScienceAppellants Vs. Union of India (UOI) and Anr... ...Respondent __________________________________________________________________ 2003(8)SCALE118, (2005)13SCC661 Hon'ble Judges: Y.K. Sabharwal and B.N. Agarwal, JJ. Subject: Environment

Case Note: Customs Act, 1962 - Section 11 and 11(2); Major Port Trust Act, 1963 Section 62; Hazardous Waste Rules - Rules 19 and 20; Foreign Trade (Development and Regulations) Act, 1992; Hazardous Waste (M and H) Rules - Rules 7 and 8A Order made in respect of adequate facilities for testing potentially hazardous wastes and recyclables at laboratories manned by trained staff at gateway points Grant of 12 months time to upgrade labs by MOEF and posting of manned staff officers in labs Meanwhile tests to be conducted by accredited labs certified by CPCB Directions given under customs Act to issue notification U/S 11 for prohibition and import of 29 tanks which have been prohibited under Schedule-8 of hazardous rules Directions given under Major Port Trust Act and Foreign Trade (Development and ------------------------- Environment law--------------------------

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Regulation Act, 1992) for disposal of hazardous waste Direction given to Ministry of Labour and Ministry of Industry to constitute special committee to examine impact of hazardous waste on workers health ORDER 1. After hearing learned counsel for the parties, the Court made the following order: 2. In respect of adequate facilities of testing at the laboratories at the gateway points, i.e., Ports, ICDS Customs Areas, for testing potentially hazardous wastes and recyclables and the said laboratories being manned by the trained staff, the stand of MOEF is that the customs labs are being upgraded. Mr. ADN Rao seeks 12 months time to upgrade the labs. Allowing the said request, but directing quarterly reports to be filed in this court detailing the progress made, the labs as suggested should be upgraded and manned staff officers posted within the period of 12 months. Compliance report shall be filed soon after expiry of 12 months. Meanwhile, the test shall be conducted by accredited laboratories certified by CPCB. 3. CPCB, Mr. Panjwani states, is imparting periodical training to Customs and Port officials. The document prepared by Dr. KR Ranganathan, a member of HPC, on the aspect of testing method for analysis of hazardous wastes, instrumentation and training requirements shall form part of the training imparted by CPCB. RE: Customs Act: 4. Section 11 of the Customs Act, 1962 empowers the Central Government to prohibit either absolutely or subject to such conditions as may be specified in the ------------------------- Environment law--------------------------

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Notification the import and export of the goods if satisfied that it is necessary so to do for any of the purposes stated in Sub-section (2). It is implicit that if import is in contravention of any law for the time being in force, such import is required to be prohibited. 5. The import of 29 items has already been prohibited under Schedule-8 of the Hazardous Waste Rules as amended in May, 2003. We see no reason why Notification under Section 11 prohibiting the import of the said 29 items shall not be issued forthwith. We direct the Central Government to issue such a Notification without any further delay. 6. Basel Convention has banned 76 items. We are contemplating issue of directions to Ministry of Environment and Forests to examine the remaining items. It is implicit that if more items are banned, the corresponding Notification shall be issued by the Central Government under Section 11 of the Customs Act. 7. The HW Rules allow import of certain items subject to fulfillment of conditions. The requisite notification shall be issued making the compliance of the said conditions mandatory before the imported consignment is cleared. RE: Major Port Trust Act: 8. The Competent Authority, while disposing of hazardous waste, in exercise of power under Section 62 of the Major Port Trust Act, 1963, is directed to ensure that the Hazardous Waste Rules, as amended up to date, shall be complied with, in particular, Rule 19 and 20 thereof. RE: Foreign Trade (Development & Regulation) Act, 1992:

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9. The Export and Import Policy (Exam Policy) issued from time to time, under the Foreign Trade (Development and Regulations) Act, 1992, inter alia, sets out the goods, import whereof is prohibited. We direct the Central Government that the said policy shall also correspond with the Hazardous Waste Rules, as amended from time to time, which means that if import of any item is prohibited under Hazardous Waste Rules, it shall be reflected in the prevalent Exam Policy. 10. For design and setting up of disposal facility as provided in Rule 8-A of HW (M & H) Rules, the Criteria for Hazardous Waste Landfills published by CPCB in February, 2001 and the Manual for Design, Construction & Quality Control of Liners and Covers for Hazardous Waste Landfills published in December 2002 shall be followed and adhered to. Along with the affidavit of Mr. M. Subba Rao, filed on 13th September, 2003, Annexure II sets out status of hazardous waste disposal sites. According to the said Annexure, 89 sites were identified out of which 30 were notified. Mr. ADN Rao, on instructions, states that out of 30, 11 landfills are ready and operational -- two in Maharashtra, one in Andhra Pradesh and eight in Gujarat and that these landfills are in accord with the Criteria and Manual aforesaid. The steps shall be taken to expedite the completion of the remaining landfills. In this view, steps should be taken of shifting of hazardous waste from wherever it is permissible to these landfills. The transport of hazardous waste would be in accordance with Rule 7 and the Guidelines issued by CPCB from time to time. Mr. Panjwani states that the guidelines are ready. Let the same be issued forthwith. MONITORING:

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11. The CPCB should issue the requisite guidelines to be followed for the purpose of upkeep of the disposal sites. 12. The CPCB shall issue guidelines to be followed by all concerned including SPCB and the operators of disposal sites for the proper functioning and upkeep of the said sites. RE: Impact of Hazardous Waste on Worker's Health: 13. We have considered the suggestion of HPC under term of reference No. 4 relating to impact of Hazardous Waste on Worker's Health. Having regard to the recommendations and submissions made by the learned counsel we direct the Ministry of Labour and Ministry of Industry to constitute a special committee to examine the matter and enumerate medical benefits which may be provided to the workers having regard to the occasional hazard as also keeping in view the question of health of the workers and the compensation which may have to be paid to them. The Committee while examining the recommendations, shall also keep in view the judgment of this Court in Consumer Education and Research center v. Union of India MANU/SC/0175/1995 : (1995) IILLJ 768 SC . The report of the special committee shall be submitted within a period of four months. 14. The matter remains part-heard.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 7660 of 1997

Decided On: 05.01.2005

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Research Foundation for Science Technology and Natural Resources Policy... Appellants Vs. Union of Respondent India (UOI) and Anr.

Writ Petition (C) No. 657 of 1995 [2005 (2) JCR 294 (SC)]

SLP (C) No. 16175 of 1997

Hon'ble Judges: Y.K. Sabharwal and S.H. Kapadia, JJ. Subject: Environment

Acts/Rules/Orders: Environment (Protection) Act, 1986; The Hazardous Wastes (Management and Handling) Rules, 1989 - Rules 3, 15(2); Constitution of India - Articles 7, 21, 47, 48A and 51A

Case Note: Constitution - Environment (Protection) Act, 1986 - The Hazardous Wastes (Management and Handling) Rules, 1989 - Rules 3, 15(2) - Constitution of India - Articles 7, 21, 47, 48A, 51A Hazardous Waste Dumping of Precautionary Principle and polluter pays principle Applicability of ------------------------- Environment law--------------------------

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Report of High Powered committee relating to presence of Hazardous waste oil in 133 containers lying at Nhava Sheva Port Illegal import of waste oil in 133 containers in garb of lubricating oil by importers Issue of show cause notices to 15 importers to show as to why consignment not to be ordered to be re-exported or destroyed at their cost Issue as to appropriate directions for dealing with consignments in question on basis of precautionary principle and polluter pays principle Precautionary principle and polluter pays principle held fully applicable Recommendation of Monitoring Committee that only appropriate course to protect environment was to direct destruction of consignments by incineration Direction given for destruction of 133 containers expeditiously by incineration at the cost of importers Importers held liable to pay amounts to be spent for destroying hazardous waste on basis of precautionary principle and polluter pays principle JUDGMENT Y.K. Sabharwal, J. 1. Considering the alarming situation created by dumping of hazardous waste, its generation and serious and irreversible damage as a result thereof to the environment, flora and fauna, and also having regard to the magnitude of the problem as a result of failure of the authorities 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. ------------------------- Environment law--------------------------

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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, notices were directed to be issued to 15 importers who imported the said consignment as also to the Commissioner of Customs. The importers were directed to show cause why the consignment shall not be ordered to be re-exported or destroyed at their cost. Since, the Ministry of Environment and Forests had spent a sum of Rs. 6.35 lakhs on the laboratory tests, the importers were also required to show cause why they said amount be not recovered from them and why all of them shall not be directed to make payment of compensation on polluter pays principle and other action taken against them. 4. The affidavits showing cause were filed by the importers. During the course of hearing, one of the contentions urged on behalf of the importers was that in respect of consignments in question, adjudicating proceedings were pending before Commissioner of Customs, Mumbai and this Court may, therefore, defer the decision on the aspect of re-export or destruction of the goods. In the order dated 11th March, 2004, it was observed that for the purpose of present proceedings, it is strictly not necessary to await the final decision of adjudication proceedings but a ------------------------- Environment law--------------------------

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report from the Commissioner of Customs may assist the court in deciding the aspects indicated in the order dated 25th September, 2003. In this view, the Commissioner of Customs was directed to sent a report to this Court on the question 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. The Commissioner of Customs was directed, to give reasonable opportunity to the importers to put forth their viewpoint before him while examining the matter and was further directed to associate the Monitoring Committee that was constituted in terms of orders dated 14th October, 2003 reported in 2003 (9) SCALE 303. The question whether any further testing is required to be done as claimed by the importers was left to be decided by the Commissioner in consultation with the Monitoring Committee. 5. Detailed reports have been filed by Commissioner of Customs (Imports), Mumbai and the Monitoring Committee. 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 ------------------------- Environment law--------------------------

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were to be imported as containerized cargo, at the Jawaharlal Nehru Port at undervalued prices. Accordingly the Central Intelligence Unit maintained a discreet watch at such consignments of Furnace Oil imported at JN Port. Emphasis was laid on Furnace oil stuffed in containers, as the same was quite unusual. Furnace Oil is basically imported in bulk on account of its large volumetric requirements by the industry and its relatively low value makes its import as containerized cargo economically unviable unless the value is suppressed, or some other miss-declaration was restored to, to offset the increased cost of packing and transportation in containers. True to the intelligence gathered, a large number of consignments of Furnace oil, packed in containers arrived at JN port in Aug-Sept and the same were detained for further investigation. In all these cases the declared prices were in the range of US$ 90 to 125 per MT as against the erstwhile international price of US$ 150, when imported in bulk. During the course of the investigation, samples were sent to the departmental laboratory for conducting tests. The standard reference parameters available pertained to those of Fuel Oil under BIS 1593-1982. Under these standards certain characteristics like Acidity, Ash content, Flash point, Kinematics viscosity, Sulphur content and Water content for Fuel oils have been prescribed by the Bureau of Indian Standards and depending on the specifications the fuel oils get divided into four grades. It is pertinent to note that these standards do not define waste oil or hazardous wastes. Initial testing of samples, by the Custom House Laboratory, drawn from some of the consignments indicated that the goods were not Furnace oil. The Laboratory, however, could not categorically state whether the samples were used/waste oil, as ------------------------- Environment law--------------------------

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they did not have the standards/specifications of used/waste oil. Inquiries made with I.O.C. and H.P.C.L also revealed that though they could test and report whether the oil was conforming to the standards of Fuel/Furnace oil but they were not in a position to state whether the same were used/waste oil. As categorical test reports were not forthcoming it was decided to get the samples tested and an opinion obtained from the Central Revenue Control Laboratory (CRCL), New Delhi. Fourteen samples, pertaining to Vidya Chemical Corporation, PCS Petrochem, Shiv Priya Overseas, Royal Implex, Eleven Star Esscon and Valley International, were accordingly forwarded to CRCL for testing and their opinion on 24.08.2000. 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 UP 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 regard to Basel Convention, the report states as under: "The Basel Convention on the Control of Trans boundary Movements of Hazardous Wastes and their Disposal was adopted by the conference of the

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Plenipotentiaries on 22.03.1989. Article I of the Convention, dealing with the scope of the convention, defined 'Hazardous Wastes' as follows: (a) Wastes that belong to any category contained in Annexure I, unless they do not possess any of the characteristics contained in Annexure III; and (b) Wastes that are not covered under paragraph (a) but are defined as or are considered to be, hazardous wastes by the domestic legislation of the party of export, import or transit. All these definitions and various clauses in the Convention indicate that the contents of the convention cannot be seen in isolation to the follow-up laws framed in this regard by the individual member countries. The contents of the Convention are only in the form of guidelines to the member nations and the final question of whether the material is Hazardous Waste or not cannot be answered on the basis of the contents of the Convention alone. With reference to the presence of PCBs in waste oils, the National Laws framed need to be examined to categorically state whether the subject cargo is hazardous or not. The contention of all the importers that their material had not violated the 50 ppm limit prescribed in the Basel Convention and were thus not Hazardous Waste has not strength if the same are not examined in the light of the Laws framed by the Country in the process of aligning with the recommendations of the Convention as the contents of the Convention are by themselves not any Law that could be implemented (to be discussed later)." 7. The report makes a detailed reference to The Hazardous Wastes (Management and Handling) Rules, 1989 as introduced in 1989 and amendments effected in ------------------------- Environment law--------------------------

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January 2000 and in the year 2003. In regard to amendments made in January 2000 where after the imports were made, *he report notices as under : "For the purpose of import, Rule 3(i) (c) defined Hazardous Waste as those listed in List 'A' and 'B' of Schedule-3 (Part A) if they possessed any of the hazardous characteristics listed in Part-B of Schedule. List A of Schedule 3 is a reflection of List A as Annex III of the Basel Convention and the hazardous wastes appearing in this list of Schedule 3 are restricted and cannot be allowed to be imported into the country without DGFT Licence. In this list attention is drawn to the entry 'Waste mineral oils unfit for their originally intended use' against Basel No A 3020. Such Waste mineral Oils would be characterized as hazardous if they possess any of the Characteristics enumerated 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." 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. Noticing that the entire cargo had been imported without proper licence and its movement to the Country is illegal, reference has been made in the report to Rule 15(2) which provides that (i) the waste in question shall be shipped back within thirty days either to the exporter or to the exporting country or (ii) shall be disposed of within thirty days from the date of off-loading subject to inability to comply with Sub-rule 2(i), in

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accordance with the procedure laid down by the State Pollution Control Board or Committee in consultation with Central Pollution Control Board. 10. In regard to the possibility of re-export of the cargo, reference has been made to Article 9(2)(a) of the Basel Convention which provides that in the case of illegal traffic as a result of conduct on the part of the exporter, the state of export shall ensure that the waste in question is taken back by the exporter within 30 days from the time the state of export was informed. It has been stated that even though there are provisions, both in International Conventions, like Basel Convention, and in our national laws, a holistic view needs to be taken in view of the prevailing circumstances. The exporters of the cargo may not take the cargo after 4 years. Besides a whole range of time consuming protocol measures may be involved. The re-export of cargo at this point of time and under the conditions in which the cargo was lying has been ruled out also stating that issues like transportation charges and the ownership and acceptability of the cargo at the destination point may be highly vexed and difficult to surmount. In this backdrop, the possibility of disposal locally as a one-time measure was examined. 11. Further, the report recommends that the importers may be directed to pay all the testing charges incurred by MPCB (Rs. 6.5 lakhs) and Customs (Rs. 7.5 lakhs approximately) from the initial stage and till final disposal of goods. It also notices that the two importers did not appear for personal hearing despite several reminders. All the 15 importers have been divided into five different categories. 12. The attention of this Court has been drawn to the condition of the waste oil stock lying in the Customs area pointing out that many of the drums have exploded

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and the contents are spread in the area which is definitely a fire hazard and is also causing grave damage to the environment. Waste Oils From Petroleum Origins and Sources [(Y8) Basel Convention] to contend that the presence of PCBs and waste oil as a secondary fuel upto 50 PPM was fairly acceptable in respect of marketing and use. On this basis and with reference to the test report, it was contended that since the PCB in the consignments in question being minimal and negligible, there was no contravention of the Basel Convention. It was contended that as per recommendations of Commissioner of Customs re-refining was possible but the Monitoring Committee has only recommended destruction by incineration without any legal basis. 13. The Monitoring Committee comprises of experts in the field. It has recommended destruction of the consignment by incineration. The PCBs may be within permissible limit insofar as parameters of Basel Convention are concerned but, at the same time, it has to be kept in view that parameters fixed by the Basel Convention. 14. 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 and polluter pays principle. These principles are part of the environmental law of India. There is constitutional mandate to protect and improve the environment. In order to fulfill the constitutional mandate various legislations have been enacted with attempt to solve the problem of environmental degradation. 15. Having regard to the aforesaid principle, the import of waste oil containing PCBs of detectable limit has been banned in India. The fact that PCBs content in ------------------------- Environment law--------------------------

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the consignments was only marginal or minimal and under Basel Convention its permissible limit is 50 PPM, is of no consequence. Judging by Indian conditions, our law has provided the limit of PCBs which if of detectable limits, the import is not allowed. 16. The afore noted 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. 17. 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.

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Bibliography
BOOKS AND JOURNALS: UCLA Journal of Environmental Law & Policy The Basel Convention and Transboundary Movements of Hazardous Wastes Jonathan Krueger, Energy and Environmental Programme, Briefing no: 45 May 1998, The Royal Institute of International Affairs.

Jaswal,P.S. Environment Law: 2009. 3rd Ed.

CONFERENCES AND SEMINARS:

Allahabad.

Basel Convention on the Control of Transboundary Movements and Hazardous Wastes and Their Disposal adopted by the Conference of Plenipotentiaries on 22 March, 1989. Implications of the Basel Convention in Indian Context D B Boralkar and Dilip Biswas, Central Pollution Control Board, Government of India, paper presented at the International Conference on Hazardous Waste Management at Anna University, Chennai, January 27, 2000.

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WEB-SEARCH [DATED: 22 March, 2010]:
The Basel Ban The Pride of the Basel Convention An update on

Implementation and Amendment September 1995 at www.greenpeace.org

"The Basel Convention At A Glance." <http://www.basel.int/convention/bc_glance.pdf> http://en.wikipedia.org/wiki/Basel_Convention http://www.basel.int/text/documents.html http://www.unep.org/ourplanet/imgversn/104/roch.html http://www.grida.no/publications/vg/waste/ http://www.scribd.com/doc/13957269/Basel-Convention http://www.ilo.org/public/english/dialogue/sector/techmeet/iloimobc08/inde

x.htm
http://www.libertyindia.org/pdfs/basel_convention_srinivasan.pdf www.manupatra.com

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