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Written By Gopal Krishna on Wednesday, September 06, 2017 | 10:49 PM
Ms Mamata Banerjee
Hon'ble Chief Minister
Government of West Bengal
Subject-Kind Attention: Hon'ble Chief Minister West Bengal w.r.t. Hon’ble High Court’s order and need to make West Bengal free of cancer causing white asbestos fibers
Dear Mamata Banerjee Jee,
With reference to Hon’ble Calcutta High Court’s order on carcinogenic-asbestos that has been used for roofing in the Hon’ble Court’s main building, this is to draw your kind attention towards a serious unprecedented environmental and occupational health crisis with regard to the unnoticed epidemic of asbestos related diseases in West Bengal in particular and in our country in general.
We submit that in Writ Petition (Civil). No. 14729 (W) of 2016, the Division Bench of Acting Chief Justice Nishita Mhatre and Justice Tapabrata Chakraborty has passed the verdict observing, “The High Court main building is undergoing repairs with the assistance of the Public Works Department (PWD) of the Government of West Bengal and other Authorities. When the entire renovation is undertaken, it is expected that the High Court and the PWD or, any other body entrusted with the renovation will ensure that the asbestos-sheets, which have been used for roofing, would be replaced by any other materials which are non-carcinogenic.”
We submit that prior to this when you were the Hon’ble Union Railway Minister the ministry had ordered removal of asbestos roofs from all railway buildings. It is noteworthy that the ministry has invited offers for “Procurement of Non-Asbestos “K” Type Composition Brake Blocks”. The offer has been issued by Director, Railway Stores (W) or and on behalf of Hon’ble President of India.
We submit that in a reply dated July 5, 2012 Deputy Secretary, Labour Department, Government of West Bengal has enclosed the reply dated May 30, 2012 of R C Dutta, Director/Chief Inspector of Factories, Government of West Bengal wherein he status of asbestos factories its adverse impact in the State has been submitted. In the submission it is reported that there are 4 units in the district of Paschim Medinipur (1) UAL Bengal (Prop. Utakal Asbestos) Vill. Tungadhowa, Guptamani-Kultikiri Road (2) Ramco Industries Ltd., Vill. Dewanmaro Ayma, P.O. Hariatara, (3) Neelachal Natural Resources Pvt Ltd., P.O. Manickpara and (4) Visaka Industries Vill., Chang sole, P.O. Saiyadpur. It reveals that “Six persons of UAL Bengal (Prop. Utakal Asbestos) having some respiratory ailments, diagnosed as suffering from Pulmonary Koch’s were treated and subsequently fit to join work in the non-dust area.”
It discloses that in the Everest Industries Ltd., 1, Taratala Road, P.O. Garden Reach in the District of Kolkata “One person having some abnormality in X-Ray Chest, diagnosed as fibrotic lung disease (?) were made unfit and alternate placement facilities were provided.” It has reported in the submission that the operation of Unit Sarbamangala Industries, 34 B, B.T. Road, Kolkata-700002 is closed for last two years. Its management has been asked to maintain the health records of the workers. It is reported that Mahendra Tubes Ltd. NH-31, Birpara Gairkata Road, Vill. P.O. Sakuajhara, Dist. Jalpaiguri is in irregular operation and the workers are not fixed and permanent. Its management has been asked to maintain the health records of the workers. With reference to J.D Jones Ltd. Howrah, it has been reported that at present it is having no process/work involved in asbestos handing. Its management has been asked to maintain the health records of the workers. The reply submits that “No case of compensation has been reported in the above units though alternate facility has been recommended for few workers in some units on medical ground”.
We submit that this reply appears to constitute a blatant case of adoption of Ostrich policy the State Government. It is refusing to admit to emergence of asbestos related diseases in these factory units of the State.
We submit that the government agencies like Directorate General, Factory Advice Service and Labour Institutes (DGFASLI) took note of Prevalence of Asbestosis and Related Disorders in a Asbestos Fiber Processing Unit in West Bengal as early as in 1996. Reference: Prevalence of Asbestosis and Related Disorders in a Asbestos Fiber Processing Unit in West Bengal, http://www.dgfasli.nic.in/newsletter/jan_march_96.pdf
We submit that as per Environmental Impact Assessment Manual for Asbestos Based Industries, Union Ministry of Environment & Forests, type and quantity of solid waste generated during the construction and operational stages is to be quantified. In case of expansion of the unit, the solid waste generated category wise should be furnished. For disposing asbestos waste mate rial the norms notified under Hazardous Waste (Management, Handling and Transboundary Movement) Rules, 2008 and the recommendations as per IS: 11768 – 1986 (Reaffirmed 2005) is required to be followed. "All asbestos waste must be kept in closed containers before its transportation to the disposal point so that no asbestos dust is emitted into the environment during transportation. Final covering of asbestos waste, other than high-density waste, shall be to a minimum depth of 2m and the asbestos waste including the used bag filters should be disposed at an approved TSDF." It must be noted that there is no mention of Hazardous Waste Treatment, Storage and Disposal Facilities (TSDFs) for the waste generated for the asbestos factories in the State. The reply and the submission do not reveal the status of the procurement of asbestos based products by the State Government and the residents of the State. It has failed to report whether the State has the environmental and occupational health infrastructure in place to diagnose asbestos related diseases.
We submit that it has been estimated that one person dies from mesothelioma for every 170 tons of asbestos consumed. WHO estimates we have107,000 deaths worldwide per year from occupational exposure to asbestos.If non occupational exposure is added it reaches a figure of about 120,000 deaths. Average world consumption/year 30-60 years ago was -- looks like 3/2 of what it is now (2 million metric tons/year). Give India its share of that based on its share of global consumption. At 300,000 tons in 2013, that's about 18,000 deaths (15% of 120,000). Asbestos diseases have a very long incubation period. So if you are exposed today to an asbestos fibre, you are likely to get the disease in next 10-35 years. Asbestos is like a time bomb to the lungs and Indians will suffer the most. If it is banned today that does not mean people will not suffer. Because of past usage people will continue to suffer from these diseases.
We submit that the Hon’ble Calcutta High Court has recorded that “there is sufficient study material indicating that asbestos sheets used for roofing could cause cancer” and “various documents, issued by the World Health Organization (WHO), and other materials obtained from the Internet, that the exposure to asbestos including chrysotile causes lung cancer, mesothelioma and asbestosis.” It was contended by the petitioner that “the High Court should not continue to use these materials for roofing, especially after legislation in different parts of the world has been enacted on recognizing the potential health risk of asbestos to the citizens at large. Even in India several Acts recognized the fact that asbestos is a health-hazard.”
We submit that there is hardly any building in West Bengal which is asbestos free. It is high time efforts are initiated to decontaminate asbestos laden public and private buildings.
We submit that prior to Hon’ble High Court’s verdict, Kerala State Human Rights Commission recommended ban on use of asbestos roofs for schools and hospitals in its order dated n 31st January, 2009.
We submit that National Human Rights Commission (NHRC) has passed an order in Case No: 693/30/97-98 recommending that the asbestos sheets roofing should be replaced with roofing made up of some other material that would not be harmful.
We submit that globally asbestos industry is on trial. Countries after countries are passing verdicts against it. They are banning future use of the cancer causing mineral fiber of asbestos. Government of India is publicly revealing that it does not favour new asbestos plants in the country any more. There is a compelling logic emerging for pre-existing asbestos based plants to shift to non-asbestos based building materials. It is not surprising that "The Government of India is considering the ban on use of chrysotile asbestos in India to protect the workers and the general population against primary and secondary exposure to Chrysotile form of Asbestos." It has noted that "Asbestosis is yet another occupational disease of the Lungs which is on an increase under similar circumstances warranting concerted efforts of all stake holders to evolve strategies to curb this menace". A concept paper by Union Ministry of Labour revealed this at the two-day 5th India-EU Joint Seminar on “Occupational Safety and Health” on 19th and 20th September, 2011. (Reference: http://www.labour.nic.in/lc/Background%20note.pdf)
We submit that the Annual Report of NHRC 2003-2004 refers to a Report entitled “Asbestos – Health and Environment – an in-depth Study “submitted by the Institute of Public Health Engineers, India. The study underlines that safe and controlled use of asbestos is not possible.
We submit that taking lessons from the industrial disaster of Bhopal, asbestos industry should ne made to pay heed to the way asbestos companies have gone bankrupt in the Western countries. They should be persuaded to join hands and create a compensation fund for victims. Dow Chemicals Company which refuses to own the liability for Bhopal disaster caused by Union Carbide Corporation (UCC) in India has owned the UCC’s asbestos related liabilities and announced a compensation fund of 2.2 billion dollars for the victims. In Europe, tycoons and ministers are facing criminal charges and imprisonment for their act of knowing subjecting unsuspecting people to killer fibers of asbestos. The future is no different for Indian culprits.
We submit that while India has technically banned mining of asbestos due deleterious impact on health, it is quite ironical that Union Government allows import of white chrysotile asbestos from countries like Russia, Brazil, Zimbabwe, Kazakhstan and others. Government should not allow itself to be misled by asbestos producers like Russia in this regard now that Canada has rightly stopped mining of white chrysotile asbestos almost like India due its “deleterious” impact on health.
We wish to draw your attention towards the verdict of five judges of Japan’s Supreme Court of February 17, 2015 that has upheld a ruling that found asbestos used at a plant of Kubota Corporation caused fatal mesothelioma in a man who lived near the plant and ordered the company to pay ¥31.9 million in damages to his relatives. The petitioners were relatives of Kojiro Yamauchi, who died at age 80 after working for two decades about 200 meters from the Kubota plant in Amagasaki, Hyogo Prefecture. His relatives and those of Ayako Yasui, who died at age 85 having lived about 1 km from the plant, sought damages from both Kubota and the government. In October, 2014 the Supreme Court ruled that the government was responsible for failing to protect workers from exposure at asbestos factories in Sennan, Osaka Prefecture. Reference: http://www.japantimes.co.jp/news/2015/02/19/national/crime-legal/top-court-upholds-kubotas-liability-in-asbestos-death-case/#.VO3inSw8RkQ
It is noteworthy that Japan has banned asbestos of all kinds including white chrysotile asbestos.
We also wish to draw your attention towards the fact that our neighbor Nepal has become the first country in South Asia which going in the direction of banning asbestos
We submit that in January 1995, while passing the judgment for the asbestos case file by the Consumer Education & Research Centre (CERC) (case details: http://indiankanoon.org/doc/1657323/), Hon’ble Supreme Court of India directed all asbestos factories to keep the health records of their workers for 40 years and/or 15 years after their retirement.
We submit that the second significant direction was the GoI and the state governments have to mend their rules and regulation as per the ILO resolution (International Labour Organisation). The ILO says eliminate asbestos of all kinds for elimination of asbestos related-diseases. Controlled use is not possible. It has not been possible for all the countries which have banned it and this is impossible in India too.
We submit that Navy officials have rightly objected to presence of asbestos in aircraft carrier Admiral Gorshkov which was inducted into the Indian Navy as INS Vikramaditya after asbestos decontamination.
We submit that Union of India’s Budget 2011-12 had made reference to asbestos related diseases by including it under the Rashtriya Swasthya Bima Yojana to cover ‘unorganized sector workers in hazardous mining and associated industries like asbestos etc”. During Emergency, the ruling party and its acolytes had proposed to put opposition leaders in jails which had asbestos roofs.
We submit that there are fibre substitutes that have been evaluated by WHO are listed in the Summary Consensus Report of WHO Workshop on Mechanisms of Fibre Carcinogenesis and Assessment of Chrysotile Asbestos Substitutes.
We submit that sooner or later, the asbestos industry will go bankrupt because they will have to pay huge amount of money in compensation. For every injury in the law there is a remedy. The present and the future generation will make sure they get remedy.
We submit that the rate of consumption of growth which they are enjoying today does not mean it will continue. In western countries, the rate picked at one time and today it is zero. This is the peak of Asbestos industry in India and now, the downfall will start.
We submit that the industry must be persuaded to phase out in two phases. In the first phase the goal is to eliminate use of chrysotile asbestos and the number of exposed workers and consumers in the country. In the second phase, the goal is to create incentives for the use of safer materials, ensure, create a registry of asbestos laden buildings and victims of asbestos-related diseases and ensure decontamination of the former and compensation for the latter. There is an immediate need to conduct an audit of the current status of the victims of asbestos related diseases from the government hospital records in the country and make it mandatory for medical colleges to provide training for doctors so that they can diagnose diseases caused by occupational, non-occupational and environmental exposures to killer fibers and substances.
We submit that Union Environment Ministry’s Vision Statement reads: “Alternatives to asbestos may be used to the extent possible and use of asbestos may be phased out”.
We submit that meanwhile, while an Advisory Committee of Union Ministry of Labour has been set up to implement Hon’ble Supreme Court order issued 15 years ago on January 27, 1995 and repeated on January 23, 2012. Although more than 1 year and four months have passed but the Advisory Committee headed by Joint Secretary, Union Ministry of Labour is yet to submit its report to incorporate specific directions of the Court with regard to fresh ILO’s Resolution of June 14, 2006 introducing a ban on all mining, manufacture, recycling and use of all forms of asbestos.
We submit that even early industry-funded studies showed a causal relationship between asbestos exposure and cancer. Had this been made known to the public it could have prevented countless deaths but the asbestos industry made the conscious decision to protect their profits instead and choose to keep this information hidden from the public. India’s asbestos industry is following the same path. As a consequence, although millions of Indian lives are being lost and millions are being exposed to the killer fibers of white chrysotile asbestos, no government agency or company is being held liable due to political patronage.
While on a visit to New Delhi, Dr Alec Farquhar, as the Managing Director, Occupational Health Clinics for Ontario Workers, Canada said, “We now have around 500 asbestos cancer cases every year in Ontario from a population of 13 million. If you (India) continue on your current path, you will multiply our death count by 100 times. That would be 50, 000 Indian workers dying every year from asbestos. In Ontario, we learned that safe use of asbestos is impossible. I urge you from the bottom of my heart, please do not make the same mistake as we made in Canada. Stop using asbestos and use a safe alternative.” It is clear that lack of documentation and lack of environmental and occupational health infrastructure does not mean lack of victims of asbestos related diseases.
We submit that the year 2011 is remembered in Bihar for a successful villagers’ struggle against a asbestos plant proposed by Kolkata based company Balmukund Cement & Roofing Ltd in Chainpur-Bishunpur, Marwan Block, Muzaffarpur district, Bihar that led to the winding up of the plant as per a communication from the Chairman, Bihar State Human Rights Commission.
We submit that following bitter resistance against the proposal of West Bengal based Utkal Asbestos Limited (UAL) at Chaksultan Ramppur Rajdhari near Panapur in Kanhauli Dhanraj Panchayat of in Goraul block in Vaishali, Bihar, Bihar State Pollution Control Board (BSPCB) cancelled the No Objection Certificate given to the UAL company. It had approval for 2.5 lakh ton per annum capacity. The peoples struggle led to stoppage of proposed asbestos based plant of 1.25 lak tons per annum (TPA) capacity in Pandaul, Sagarpur, Hati tehsil in Madhubani, Bihar. The proposal of 2.5 lakh TPA capacity plant by Hyderabad Industries Ltd in Kumar Bagh, Bettiah, West Champaran, Bihar has also been stopped. The company has constructed a boundary wall amidst rich agricultural field but faces court cases from villagers.
It is sad that a killer fiber like asbestos which is banned in some 60 countries is being used in West Bengal to manufacture asbestos cement sheets disregarding the fatal health impact for present and future generations. Such plants and products should be stopped to save residents from incurable lung cancer like diseases.
We submit that asbestos death toll has surpassed traffic fatalities in Australia. In US, every year 10, 000 people are dying because of asbestos related disease. There is an epidemic of asbestos diseases in Europe. In India, a silent Bhopal disaster is happening every year. The rate of consumption of asbestos in India is rising at an alarming rate due to budgetary support. Nearly all of India's asbestos is mixed with cement to form roofing sheets. Bolstered by asbestos import tariffs that have been reduced from 78% in the mid-1990s to 15% by 2004, the country's asbestos-cement industry is increasing by roughly 10% every year.
We submit that some typical asbestos-based materials include sound insulation infill, thermal insulation lagging, tape, rope, felts, blankets, mattresses, asbestos boards, gaskets and washers, drive belts/ conveyor belts, roofing sheets and slates, drain and flue pipes, rainwater goods, fascia boards, bath panels, ceiling tiles, toilet seats, cisterns, bitumen damp proof course, lining to walls, lab bench tops, extraction hoods and fume cupboards, brakes and clutches, cooling tower elements and others.
We submit that the health consequences are already apparent, but the scale of the problem is not clear because there is no documentation of disease caused by environmental and occupational factors. “The Government of India has a very poor, almost non-existent, system to record death and disease”, explains Arthur Frank from Drexel University, Philadelphia , PA , USA who is a regular visitor to India. Besides, cancer is not a notifiable disease. Prof. Frank cited a hospital in Mumbai which sees a dozen cases of mesothelioma every year. Studies have shown high rates of asbestosis among workers in the industry, including in those whose exposure to the material has spanned less than 5 years. There has been no real assessment of [asbestos-related disease] to the point that you can get accurate figures.
We submit that the verdict even by the World Trade Organization (WTO)’s Appellate Body (AB) validated the rights of Member States to prohibit the import and use of goods which contain carcinogenic substances such as chrysotile asbestos (white asbestos) is noteworthy. On March 12, 2001 the WTO's Appellate Body (AB) issued its ruling in the case of Canada vs. the European Communities Measures Affecting Asbestos and Asbestos-Containing Products. It noted that safe and controlled use of chrysotile asbestos is impossible.
We submit that India is the largest importer of asbestos, according to the UN Commodity Trade Statistics Database. Most of it goes into making corrugated roofing sheets as building material.
In our country, it has been estimated by a Canadian jurist that approximately 50, 000 people die every year due to asbestos related cancer. But so far Government of India and state governments has failed to take a pro-people’s health position and a scientific stand on the import of chrysotile asbestos whose mining is technically banned in India. It is a matter of fact that health is a state subject.
In such a context, we appeal to you to take note of:
· Hon’ble Calcutta High Court’s order;
· Resolutions of WHO and ILO (2005 and 2006 seeking elimination of future use of asbestos including chrysotile asbestos worldwide;
· Need to announce the compensation package for present and future victims of asbestos diseases as it has done in the case of Silicosis and make the asbestos companies criminally liable for knowingly exposing citizens and consumers of asbestos products;
· The fact that every international health agency of repute including the World Health Organization, the International Labor Organization, International Agency for Research on Cancer, Occupational Safety and Health Administration, National Institute for Occupational Safety and Health, and the American Cancer Society agree there is no safe level of asbestos exposure. Most recently, the International Agency for Research on Cancer (IARC) reconfirmed that all commercial asbestos fibers - including chrysotile, the most commercially used form of asbestos - cause lung cancer and mesothelioma. In addition, IARC newly confirmed that there is sufficient evidence that asbestos causes ovarian cancer and reconfirmed asbestos causes laryngeal cancer;
· The World Health Organisation estimates that asbestos already claims 107,000 lives a year. Even that conservative estimate means every five minutes around the clock a person dies of asbestos related disease. The ongoing use of the asbestos fibre kills at least 300 people every day;
· World Bank's Asbestos Good Practice Guidelines. These Guidelines, as well as its earlier Environmental, Health & Safety General Guidelines, require that the use of asbestos must be avoided in new construction in projects funded by the World Bank around the world. The Guidelines also provide information on available safer alternatives to asbestos;
· Human biology is same everywhere if the asbestos is deemed hazardous in the developed countries; it must be deemed so in West Bengal too;
In view of the incontrovertible adverse health effects asbestos based plants and products should be phased out to protect the lives of present and future generations.
We take this opportunity to draw your immediate attention towards the fact that asbestos related diseases are also incurable despite this environmental clearances are still being given by the central environment ministry but health being a state subject, your government can act to safeguard the life of present and future generations by stopping it.
All the groups working on human rights, labour rights, health rights and environmental justice will appreciate if you can intervene urgently in the matter of chrysotile asbestos as Kerala government acted in the case of Endosufan. Health is a state subject.
In such a backdrop, it is germane to ask Government of West Bengal to stop manufacturing, procurement and use of all forms of asbestos including white asbestos.
In view of the above, it is your solemn duty to protect the residents of West Bengal from the exposure of fibers of chrysotile asbestos.
We will be happy to share reference documents and more information in this regard.
Thanking you in anticipation
Dr Gopal Krishna
Written By Krishna on Friday, August 18, 2017 | 7:47 AM
Tamil Nadu’s Nibhi asbestos company’s case against Bihar State Pollution Control Board (BSPCB), Bihar Industrial Area Development Authority (BIADA) and Bihar Government is listed for order before Justice Shivaji Pandey’s bench of Patna High Court after cancellation of permission of the carcinogenic asbestos based hazardous factory by Pollution Control Board. The matter is listed for order on August 21, 2017. The asbestos company has filed the case against State of Bihar, Department of Industries, Govt. of Bihar and Bihar Industries Development Authority (BIADA).
In its counter affidavit, Pollution Control Board has submitted that the factory has undermined the status of Bihar as an air pollution control area under Section 19 of Air (Prevention & Control of Pollution) Act, 1981. The factory has also violated Section 21 of the Act which forbids establishment and operations of such factory without the consent of the Pollution Control Board. It has submitted that the factory was closed from November 2013.
From the submission of the Pollution Control Board, it is clear that the High Court is likely to dismiss the petition of the Nibhi asbestos company because it is not maintainable because the company did not avail the alternative remedy provided by Air (Prevention & Control of Pollution) Act, 1981 and National Green Tribunal Act, 2010. It is evident that the company in question is guilty of failure to comply with the provision of Section 21, Section 22 and Section 31 A under Section 37 of the Air (Prevention & Control of Pollution) Act, 1981. The power of the Board to order closure of polluting factories under Section 31 A has been endorsed by the High Court in Bihar State Pollution Control Board v Hiranand Stone Works (AIR 2005 Pat 62). It has been held in Krishna Gopal v State of Uttar Pradesh (1986 Cr LR 11 MP) that the order of removal of a polluting factory which causes emission detrimental to the physical comfort and health of public at large is valid.
Section 37 of the Air (Prevention & Control of Pollution) Act, 1981 provides that non-compliance with the directions of the Pollution Control Board will attract penalties. Section 37 (1) reads: “Whoever fails to comply with the provisions of Section 21 or Section 22 or directions issued under Section 31 A, shall in respect of each such failure, be punishable with imprisonment for a term which shall not be less than one year and six months but which may extend to six years and with fine, and in case the failure continues, with an additional fine which may extend to five thousand rupees for every day during which such failure continues after the conviction for the first such failure.” Given the fact that Nibhi company’s violations have continued for more than one year, its omissions and commissions will attract the penalty envisaged under Section 37 (2). It reads: “If the failure referred to in sub-section (1) continues beyond a period of one year after the date of conviction, the offender shall be punishable with imprisonment for a term which shall not be less than two years but which may extend to seven years and with fine.”
In such a backdrop, Nibhi asbestos company is seeking quashing of the cancellation of consent by BSPSCB dated 21 July 2016 to operate its hazardous industrial activity. It has also sought quashing of letter of Chairman, Pollution Control Board dated 22 September 2016 ordering closure of the factory with immediate effect.
The illegal operations of Nibhi company’s factory was detected on 31 January 2016 on inspection by the Pollution Control Board. In the inspection Pollution Control Board found the following lapases:
1) the waste asbestos was not proeperly stored rather they were found scattered in the factory premises all around;
2) There was no facility for diposal for solid waste;
3) Facilities for pulverization of asbestos was found lacking;
4) Authorization has not been obtained under Hazardous Waste (Management, Handling & Transboundary Movement) Rules, 2008
The failure of the Nibhi company to obtain authorization under Section 5 of Hazardous Waste (Management, Handling & Transboundary Movement) Rules, 2008 is a grave illegal and immoral offence because it has exposed the health of workers, communities and the environment by its unpardonable act of omission and commission. Under Section 25 of the Hazardous Waste Rules, the company is liable for all the damages caused to the environment, workers and to the communities due to improper handling of the hazardous wastes or improper disposal of hazardous wastes. The company is liable to pay financial penalties as levied by the Pollution Control Board for its violations.
The company did not submit Form 1 seeking authorization under the Rules. As a consequence it did not bother to maintain the record of hazardous wastes handled by it in Form 3 and did not submit annual return in Form 4 on or before the 30th of June of each financial year as per the Rules. This resulted in a situation wherein Pollution Control Board could not maintain the register containing particulars of the conditions imposed under the rules for management of hazardous waste under Section 5 (9) of the Rules. This provision also stipulates that any person interested or affected or a person authorized by him can inspect this register during office hours. A situation has arisen wherein workers and communities of Giddha panchayat and adjoining areas of Koilwar block has been denied the opportunity to ascertain the amount and quality of hazardous waste generated by Nibhi company and correlate it with the human, occupational and environmental health impacts.
The Pollution Control Board’s affidavit states that besides this when Nibhi asbestos company was issued show cause notice under Water (Prevention & Control of Pollution) Act, 1974 and Air (Prevention & Control of Pollution) Act, 1981, it chose not to respond to it.
Not only this when pursuant to a complaint of ToxicsWatch Alliance (TWA) to Union Ministry of Environment & Forests Government of India through its Regional Office at Ranchi, Bihar Pollution Control Board re-inspected the factory, it was found that the factory was in operation in disregard of the closure order from Pollution Control Board. The non-compliance with Pollution Control Board’s order has inflicted injury and caused damage to the environment, the counter affidavit of the Board has submitted.
Pollution Control Board warned Nibhi company by a letter dated 22 September 2016 stating that if there will be non-compliance, a compliant will be filed against it under Section 37 of the Air (Prevention & Control of Pollution) Act, 1981.
In its affidavit, the Pollution Control Board has submitted that although the company had the option of filing an appeal before the appellate authority within 30 days of its order, instead of availing the alternative remedy, it has chosen to file the case in the High Court. The company had the option of filing an appeal in the National Green Tribunal if they had felt aggrieved by the decision of the appellate authority of the Pollution Control Board.
Following anti-asbestos movement campaign and taking note of the violation of environmental laws by asbestos factories in Bhojpur, Bihar, BSPCB cancelled the No Objection Certificate given to the asbestos factory units of Tamil Nadu based Nibhi Industries Pvt Ltd. Despite such action this factory has been operating with impunity. The matter was last heard on July 21, 2017. BSPCB has filed its counter affidavit pursuant to Court’s order dated March 23, 2017. It is puzzling as to why BIADA has been made a party in the case.
Notably, BSPCB has revoked its emission-consent order and discharge consent order given to Tamil Nadu based Nibhi Industries Pvt Ltd which was valid till 31st March, 2018. Chairman, BSPCB has ordered, the company in question, Nibhi Industries Pvt Ltd. to “close your industrial unit with immediate effect, failing which complaints shall be filed u/ss. 44 of the Water (Prevention and Control of Pollution) Act, 1974 and 37 of the Air (Prevention and Control of Pollution) Act, 1981.” This land allotment was considered to be part of the scam that led to an inquiry into allotments by Bihar Industrial Area Development Authority (BIADA). In Bhojpur's Giddha village in Koilwar block, the 100,000 MT Capacity Asbestos Fibre Cement Corrugated Sheet, Flat Sheet, Accessories and Light Weight Fly Ash Block Plant acquired 15 acres. The plant site is located adjacent to Ara-Koilwar road.
The villagers have been complaining against the hazardous factories in their proximity that manufacture chrysotile white asbestos-cement products. The hazardous asbestos waste has been dumped indiscriminately in the adjoining villages and the agricultural fields.
This company misled the villagers by telling them that agro-based factories will be set up. Initially, when they bought the land they did not disclose that it was for asbestos based factories. When students of 10th and 12th standard found that it was going to be hazardous factory, they pointed out that as per their biology and chemistry text books asbestos causes incurable lung diseases.
Given the fact that No Objection Certificate of all the asbestos based factories in Bihar has been cancelled by BSPCB, there is no legal basis for the continued operations of this hazardous factory.
Notably, questions were raised against these plants in Bihar Vidhan Sabha and Vidhan Parishad. Abdul Bari Siddiqui, former Bihar Finance Minister had raised the issue of hazardous asbestos factories in Vidhan Sabha. In another significant observation Awadhesh Narain Singh as Chairperson, Bihar Legislative Council (BLC) and former labour minister said, “buying asbestos is akin to buying cancer” and “pain of asbestos related diseases is worse than the pain of unemployment.” The speech is available at http://www.youtube.com/watch?v=B9TbemRUkYM. He noted that his own B-Ed College affiliated to Aryabhat University faces threat from this hazardous factory as it is located exactly behind it. In fact boundary walls alone create two sites wherein at one site a hazardous and cancer causing factory operations are happening illegally and illegitimately and on other site education activities are happening threatening health of teachers and the staff of the college.
It is noteworthy that this poisonous factory was initially proposed to be set up at Dharmachak and Salempur, Dhariyapur, Chapra but villagers from there got a relief when their village site was not selected for such hazardous industrial activity.
In India, asbestos mining is technically banned and trade in asbestos waste (dust and fibers) is also banned. Union Environment Ministry’s Vision Statement on Environment and Human Health reads, "Alternatives to asbestos may be used to the extent possible and use of asbestos may be phased out" but the Experts Appraisal Committee of this very ministry continues to give environmental clearance to such hazardous industries. This is notwithstanding the fact that "The Government of India is considering the ban on use of chrysotile asbestos in India to protect workers and the general population against primary and secondary exposure," as announced in a concept paper by the Ministry of Labour. Both these documents are available on central government’s website but struggle to make Indians safe from deadly exposure of asbestos fibers continues in the face of misinformation campaign of the killer industry.
As per Supreme Court's judgment of January 27, 1995 in Writ Petition (Civil) No.206 of 1986 which was reiterated on January 21, 2011, the State govt has to comply with fresh ILO, resolution of June, 2006 on Asbestos and the health records of workers have to be maintained for 40 years and for 15 years after the retirement. The Judgment also stipulates compensation for such workers who suffer from asbestos related diseases. In violation of Court's orders, the Nibhi company has not been maintaining the health record of the workers in its factory at Giddha, Koilwar. It is not conducting Membrane Filter test to detect asbestos fibre. It is not insuring health coverage to workers and that the company does not have qualified occupational health doctors to undertake these tasks.
There is a compelling reason to ensure that both these companies in question are tasked to decontaminate asbestos laden factory sites, building, prepare a register of victims of asbestos related diseases and announce a compensation fund for victims of fatal diseases remains to be undertaken. This is required to save present and future generation from incurable asbestos related diseases. It was listed for hearing on 8 February 2017, 23 March, 7 April, 12 April, 27April, 5 July, 11 July and 21 July 2017. So far High Court the Nibhi asbestos factory case has been listed on nine occasions since the filing of the case on September 1, 2016.
It may be recalled that after more than five years of villagers' struggle against lung cancer causing asbestos based plant of West Bengal based Balmukund company in Chainpur-Bishunpur, Marwan block in Muzaffarpur district of Bihar was closed. It had approval for 3 lakh ton per annum capacity. Bitter resistance against the proposal of West Bengal based Utkal Asbestos Limited (UAL) at Chaksultan Ramppur Rajdhari near Panapur in Kanhauli Dhanraj Panchayat of in Goraul block in Vaishali made the Bihar Chief Minister Nitish Kumar intervene after a delegation of leaders from Left parties and anti-asbestos activists met him in this regard. I worked with Khet Bachao Jeevan Bachao Jan Sangarsh Committee of Muzaffarpur and Vaishali to resist the setting up such hazardous plants and represented it in negotiations. Bihar State Pollution Control Board (BSPCB) cancelled the No Objection Certificate given to the UAL company. It had approval for 2.5 lakh ton per annum capacity. This company also operated Giddha, Bhojpur based asbestos factory for some time as well. After he was presented a memorandum signed by 10, 000 villagers, BSPCB’s Chairman stood his ground against the factory because it had violated the Battery Limit fixed for such hazardous industries. Company representatives compared harmful effects of asbestos exposure to harm from drinking too much alcohol and road accident. This was emphatically rejected by the villagers as quite insensitive. The peoples struggle led to stoppage of proposed asbestos based plant of 1.25 lak tons per annum (TPA) capacity in Pandaul, Sagarpur, Hati tehsil in Madhubani. The proposal of 2.5 lakh TPA capacity plant by Hyderabad Industries Ltd in Kumar Bagh, Bettiah, West Champaran has also been stopped. The company has constructed a boundary wall amidst rich agricultural field but faces court cases from villagers.
Clearly, Bihar is paving the path for an asbestos free country like some 60 countries which have banned white chrysotile asbestos, the key carcinogenic mineral fiber imported from Russia, Kazakhstan, Kyrgyzstan and Zimbabwe. It is high time other States also took cognizance of the harmful effect of use, manufacture and trade of asbestos based products. In a significant development, Kerala Human Rights Commission has recommended ban on use of asbestos in public buildings. National Human Rights Commission has observed, “Replace the asbestos sheets roofing with roofing made up of some other material that would not be harmful to inmates” in Case No.693/30/97-98.
It is unbecoming of the India’s scientific stature to take untruthful and unscientific position displaying unpardonable callousness towards concerns of consumers, public health, workers, environment and human rights. India should learn from countries that have banned asbestos of all kinds including white chrysotile asbestos. These countries are: 1) Algeria, 2) Argentina, 3) Australia, 4) Austria, 5) Bahrain, 6) Belgium, 7) Brunei, 8) Bulgaria, 9) Chile, 10) Croatia, 11) Cyprus, 12) Czech Republic, 13) Denmark, 14) Egypt, 15) Estonia, 16) Finland, 17) France, 18) Gabon, 19) Greece, 20) Germany, 21) Gibraltar, 22) Hungary, 23) Honduras, 24) Iceland, 25) Iraq, 26) Ireland, 27) Israel, 28) Italy, 29) Japan, 30) Jordan, 31) Kuwait, 32) Latvia, 33) Luxembourg, 34) Lithuania, 35) Mauritius, 36) Mozambique, 37) Malta, 38) Netherlands, 39) New Caledonia, 40) New Zealand, 41) Norway, 42) Oman, 43) Portugal, 44) Poland, 45) Qatar, 46) Romania, 47) Saudi Arabia, 48) Sweden, 49) Switzerland, 50) Serbia, 51) Seychelles, 52) Slovakia, 53) Slovenia, 54) South Africa, 55) South Korea, 56) Spain, 57) Turkey, 58) Uruguay, 59) United Kingdom and 60) Ukraine.
Although domestic laws in India recognize white chrysotile asbestos as hazardous, the Union Government has been taking inconsistent position in this regard in UN meetings. Government should take steps to rectify the blunder it has committed by immorally and illegitimately denying right to know about hazardous substances to present and future Indians. It should factor in views of health and environment ministers to pave the way for creating a future which is free of incurable hazardous asbestos related diseases. Indian laws include asbestos in the list of hazardous substances but tremendous influence of commercial interests has forced the Indian delegation to take a position which is diametrically opposite of domestic laws.
It is hoped that India will learn from anti-asbestos struggles in Bihar and revise its position at the next meeting of UN’s Rotterdam Convention on the prior informed consent procedure for certain hazardous chemicals and pesticides in international trade in 2019 to defend democratic right of people to be protected from hazardous substances. The listing of white chrysotile asbestos in the UN list of hazardous substances helps in better protection of public health and environment. India should refrain from taking positions which is contrary to its own domestic law.
Nibhi's hazardous cancer causing factory is situated in front of the Trident B.Ed College, Giddha, Koilwar, Bhojpur affiliated to Arybhatt Knowledge University, Patna. The college has 6 acres of land situated at Giddha Industrial Growth Center. It is at a distance of 50 kms from the state capital on NH 30. There is just a brick boundary separating the factory and the Be. Ed college. In order is safeguard the teachers and staff of this college, the company should be made to decontaminate the site of the factory before moving away after the High Court's verdict.
Implementation of Stockholm Convention on Persistent Organic Pollutants (POPs) in India & outcome of triple CoP
India has prepared its National Implementation Plan and submitted the same to the Stockholm Convention Secretariat. As per Article 7 of the treaty development of the National Implementation Plan (NIP) of the Stockholm Convention on Persistent Organic Pollutants (POPs) is required by all the parties. It is to demonstrate how the obligations under the Convention would be implemented and discusses how Parties aim to meet their obligations under the treaty. The Convention entered into force on May 17, 2004. India signed it on May 14, 2002. It ratified it on January 13, 2006. It came into force for India on April 13, 2006.
The treaty can ban chemicals currently in use, not only the obsolete and redundant ones. The chemical industry has expressed concern about the listing of its persistent organic pollutant (POP) products.
The objective of the Stockholm Convention on Persistent Organic Pollutants is to protect human health and the environment from POPs. The treaty requests parties to protect the citizens and the environment from POPs through activities stipulated in the articles of the treaty.
Governments have agreed to list all the chemicals recommended by the POPs Review Committee (POPRC) because the evaluation process is comprehensive and meet convention obligations under Article 8. The main problem with the decision-making process at Conferences of the Parties (COPs) is not that chemicals in use are listed but that the POPRC’s work and its recommendations limiting the scope of exemptions are often ignored. The COP8 meeting illustrates it. Short-chain chlorinated paraffins (SCCPs) form a class of industrial chemicals primarily used in metalworking but also as flame retardants and softeners in plastics, including children’s products. SCCPs adversely affect the kidney, liver and thyroid, disrupt endocrine function and are anticipated to be human carcinogens. The POPRC recommended listing them in the treaty without exemptions, due to the availability of feasible alternatives.
Governments at COP8 proposed a wide-ranging series of exemptions that effectively cover all known uses of SCCPs. The treaty listing does represent an important five-year global phase-out of a very harmful chemical, but there was a clear disconnect between POPRC evidence that vegetable oil is a key substitute for the substances in metalworking and granting an exemption for this use, along with many others.
DecaBDE is a serious example of a listing process getting sidetracked by unjustified exemptions. For example, an exemption was granted for the use of decaBDE in polyurethane foam for building insulation, but the POPRC had no evidence that the substance is used for this purpose.
The exemptions for the automotive and aviation industries shows how conventional phase-out period of five years has been expanded to 2036.
Such extensive exemptions will result in the continued production and use of decaBDE, a substance that strongly resembles polychlorinated biphenyls.
The aviation industry’s decaBDE exemption shows what happens when companies that have already phased out POPs ignore the Stockholm Convention.
COP 8 agreed that governments that seek exemption for decaBDE or SCCPs should justify their need for it by December 2019.
Two countries have withdrawn a proposal to permit the recycling of materials containing decaBDE. Recycling plastic products containing POPs also contaminates new products.
The treaty prohibits POP recycling and the POPRC warned against the practice, noting continuing human and environmental exposure and the loss of the credibility of recycling. The current toxic recycling exemption for commercial pentaBDE and octaBDE allows this bad practice to continue until 2030.
In countries like India decision making on exemptions bring POPs across borders legally amidst a flood of products, causing ongoing exposure.
It will create difficulty in complying with the treaty’s waste provisions, since it cannot identify which products contain POPs. Even if they could identify them, many do not have the capacity to destroy them as per law's requirements. India remains caught in such vicious circle of poison.
India’s NIP development includes conducting POPs inventory preparation, establishment of required national infrastructure and the capacities for its realization.
While decisions on exemptions appear abstract and intangible the fact is that such exemptions pose harm to human health through food chain.
The joint Conferences of the Parties of the Basel, Rotterdam, and Stockholm Conventions took place in Geneva from 24 April to 5 May, 2017. The note below draws on information shared on IPEN list serve. It explains a few key points that emerged from the separate meetings of the three treaties in general and Basel Convention and Ban Amendment to it in particular.
Triple COP 2017 outcomes:
- Governments added short-chain chlorinated paraffins (Short-chain chlorinated paraffins-SCCPs) to the treaty for global elimination along with a variety of five-year exemptions. SCCPs are toxic industrial chemicals used in metal cutting and also in PVC consumer products.
- Governments added DecaBDE to the treaty for global elimination along with a variety of five-year exemptions and longer exemptions for new and old vehicle parts and aircraft. A proposal for a recycling exemption was defeated. DecaBDE is flame retardant and prominent component of e-waste.
- Governments added hexachlorobutadiene, a chemical formed unintentionally, including during chlorinated solvent production and incineration, to Annex C of the treaty to reduce releases with the goal of elimination.
- The meeting adopted weak waste limits, but kept alive more protective limits as an option for HBCD and the commercial mixtures of PentaBDE and OctaBDE.
- Stockholm COP8 encouraged regional centers to work on the impact of plastic waste, marine plastic litter, microplastic, and measures for prevention and environmentally sound management.
- Stockholm Convention COP8 admitted that the recycling exemption likely contaminates children’s toys and urged governments to ensure that flame retardants are not introduced into products that would pose a risk of human exposure such as children’s toys.
- Basel Convention COP13 established a household waste
working group which will develop a guidance document on the
environmentally sound management of household waste including best
practices; mechanical biological
treatment, energy recovery, management of sanitary landfills and
compartmentalization to deal with various waste streams. The Convention entered into
force on May 5, 1992. India
signed it on March 15. 1990. It ratified it on June 24, 1992. It came into
force for India on September 22, 1992.
- The Basel Convention e-waste guidelines will go to a newly formed working group led by China for further work including distinguishing waste from non-waste and the repair loophole.
- The Basel Convention extended the mandate of the group working on environmentally sound management of waste to develop manuals on extended producer responsibility, financing systems, insurance and liability; conduct five pilot projects on the topic; and develop a guidance document on efficient strategies for the recycling and recovery of hazardous and other wastes and how to address the environmentally sound management of wastes in the informal sector.
- Carbofuran, trichlorfon, SCCPs, and tributyl tin were all listed in Annex III of the Rotterdam Convention, making them subject to the treaty’s prior informed consent procedure.
- Chrysotile asbestos, fenthion, paraquat, and carbosulfan were all blocked from listing in the Rotterdam Convention even though there was consensus agreement that they met all criteria for addition to the treaty. Rotterdam Convention came into force on February 24, 2004. India signed the accession on May 24, 2005. It entered into force for India on August 22, 2005.
- The Basel Convention adopted a guidance document focusing on waste prevention, minimization and reuse. The document includes measures such as information on chemicals in products, green procurement, and extended producer responsibility. The expert working group will continue and gather good practices and examples with regard to waste prevention and minimization.
- It is noteworthy that Ban Amendment to Basel Convention has not come into force as yet although it was adopted on September 22, 1995. As per 17 (5) of the Convention which reads as follows: "Instruments of ratification, approval, formal confirmation or acceptance of amendments shall be deposited with the Depositary. Amendments adopted in accordance with paragraphs 3 or 4 [of article 17 of the Convention] shall enter into force between Parties having accepted them on the ninetieth day after the receipt by the Depositary of their instrument of ratification, approval, formal confirmation or acceptance by at least three-fourths of the Parties who accepted them or by at least two thirds of the Parties to the protocol concerned who accepted them, except as may otherwise be provided in such protocol. The amendments shall enter into force for any other Party on the ninetieth day after that Party deposits its instrument of ratification, approval, formal confirmation or acceptance of the amendments.” In accordance with paragraph 3 of Article 25 of the Basel Convention, applicable mutatis mutandis to amendments of the Convention, for the purpose of entry into force, any instrument deposited by a political and/or economic integration organization shall not be counted as additional to those deposited by member States of such organization. Accordingly, as a regional economic integration organization, ratification by the European Union does not count in addition to the ratifications by Member States of the Union for the purposes of entry into force of this instrument. By decision III/1, of 22 September 1995, the Third meeting of the Conference of the Contracting Parties to the above Convention, which took place in Geneva from 18 to 22 September 1995, adopted an Amendment to the Convention (including the adoption of Annex VII).
- Basel Protocol on Liability and Compensation for Damage Resulting from Transboundary Movements of Hazardous Wastes and their Disposal Basel adopted on December 10, 1999 also awaits ratification for it come into force. As per Article 29, "1.The Protocol shall enter into force on the ninetieth day after the date of deposit of the twentieth instrument of ratification, acceptance, formal confirmation, approval or accession. 2. For each State or regional economic integration organization which ratifies, accepts, approves or formally confirms the Protocol or accedes thereto after the date of the deposit of the twentieth instrument of ratification, acceptance, approval, formal confirmation or accession, it shall enter into force on the ninetieth day after the date of deposit by such State or regional economic integration organization of its instrument of ratification, acceptance, approval, formal confirmation or accession. 3. For the purpose of paragraphs 1 and 2 of this Article, any instrument deposited by a regional economic integration organization shall not be counted as additional to those deposited by member States of such organization".
- Although the parent treaty Basel Convention came into force on May, 1992. It is being undermined by bilateral free trade agreements of the parties.