Issue 1 - whether trial court and high court erred in law while charging petitioner under Environmental Protection

Act 1986, r/w S. 4 & 5 of the Hazardous Waste (Management and Handling) Rules, 2008 or not. Summary No petitioner company cannot be charged under this section because the said rules applies to only Hazardous waste and its clear in the facts of the case that waste generated was non hazardous ,and even for the sake of argument we may consider waste to be hazardous it was not generated by the petitioner. Body of Argument In the present case Gamming Toys, Ltd. A private company, based at Nasik, was charged under Environmental Protection Act 1986, r/w S. 4 & 5 of the Hazardous Waste (Management and Handling) Rules, 2008 for tipping of hazardous waste which was craftily disposed at petitioner premises by petitioner rivals in order to disrupt productivity of petitioner. But before going into merit whether company can be made liable for this, it is humbly submitted that Hazardous Waste (Management and Handling) Rules, 2008 under which Petitioner Company is charged applies only for hazardous waste. For this plain reading of section 2 of Hazardous Waste (Management and Handling) Rules, 2008 is loud and clear2. Application:- These rules shall apply to the handling of hazardous wastes as specified in Schedules1 Therefore it is loud and clear that Hazardous Waste (Management and Handling) Rules, 2008 rules applies only to Hazardous waste.Also Section of the same rules defines hazardous waste as

2. Application:- These rules shall apply to the handling of hazardous wastes as specified in Schedules and shall not apply to(a) waste-water and exhaust gases as covered under the provisions of the Water (Prevention and Control of Pollution) Act, 1974 (6 of 1974) and the Air (Prevention and Control of Pollution) Act, 1981 (14 of 1981) and the rules made thereunder; (b) wastes arising out of the operation from ships beyond five kilometres of the relevant baseline as covered under the provisions of the Merchant Shipping Act, 1958 (44 of 1958) and the rules made thereunder; (c) radio-active wastes as covered under the provisions of the Atomic Energy Act, 1962 (33 of 1962) and the rules made thereunder; (d) bio-medical wastes covered under the Bio-Medical Wastes (Management and Handling) Rules, 1998 made under the Act; and (e) wastes covered under the Municipal Solid Wastes (Management and Handling) Rules, 2000 made under the Act;

Hazardous waste means any waste which by reason of any of its physical, chemical, reactive, toxic, Flammable, explosive or corrosive characteristics causes danger or is likely to cause danger to health or Environment, whether alone or when in contact with other wastes or substances, and shall include(i) Waste specified under column (3) of Schedule-I, (ii) Wastes having constituents specified in Schedule-II if their concentration is equal to or more than the Limit indicated in the said Schedule, and (iii) Wastes specified in Part A or Part B of the Schedule-III in respect of import or export of such wastes in ,Accordance with rules 12, 13 and 14 or the wastes other than those specified in Part A or Part B if they Possess any of the hazardous characteristics specified in Part C of that Schedule;2 Therefore it is amply clear from the facts of the case that Waste which was tipped by petitioner employer into derelict land was non - hazardous and not Hazardous waste, therefore petitioner cannot be charged under Environmental Protection Act 1986, r/w S. 4 & 5 of the Hazardous Waste (Management and Handling) Rules, 2008. ARGUENDO - Also for the sake of argument, we may consider that the waste generated was hazardous waste it is humbly submitted that Hazardous Waste (Management and Handling) Rules, 2008 fixes liability for improper disposal of waste by occupier generated by establishment. 4. Responsibilities of the occupier for handling of hazardous wastes.(1) The occupier shall be responsible for safe and environmentally sound handling of hazardous Wastes generated in his establishment. (2) The hazardous wastes generated in the establishment of an occupier shall be sent or sold to a recycler or re-processor or re-user registered or authorized under these rules or shall be disposed of in an authorized disposal facility.3 It is humbly submitted that in the present case waste was not generated by establishment but it was deposed off by petitioner rival to suppress company productivity, and hence even if the waste is hazardous petitioner company is not liable.

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Section 2 Hazardous Waste (Management and Handling) Rules, 2008 Section 4 Hazardous Waste (Management and Handling) Rules, 2008