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Why India should learn from verdict of the Brazilian Court declaring use of asbestos as unconstitutional
Written By Gopal Krishna on Monday, November 13, 2017 | 12:15 AM
Even “controlled use of asbestos” is deemed unconstitutional
“I lost my mother due to mesothelioma for no fault of hers. we have not used asbestos at all however it seems the fibers have spread in the environment. Only those who have suffered this dreadful disease can know the pain and we have seen my mother go through enormous pain during these years. I stay in mumbai and yes i have the medical records. There is no cure for mesothelioma and i hope one day we find it.”
-----Amit Kumar Jain, September 8, 2017 in a written communication with the author
These days while India’s ministry of railways is rightly busy removing asbestos from railway platform across the country but one witnesses waste dump of broken roof sheets which is a design feature of every asbestos based product strewn around on the station and in nearby areas putting unsuspecting passengers and citizens at grave risk of exposure to the hazardous mineral fibers banned in some 60 countries. Piyush Goyal, the new railway minister needs to urgently ensure barricading of the asbestos laden area to avoid any effect on passengers and locals in its surrounding. .He must get a safety audit done so that only skilled and competent persons get employed for removing hazardous asbestos sheets. Asbestos abatement and removal must be carried out by a competent, approved asbestos removal contractor. Once the asbestos has been safely removed, there has to be certification of a clean air clearance. There must be a system for wrapping/disposal of removed sheets. The disposal of asbestos debris requires its proper scientific landfilling. The use of asbestos based products and technology carries continuing burden of harm throughout its life cycle. Asbestos mineral fiber of all kinds including white chrysotile asbestos has been certified by the World Health Organisation (WHO) to be carcinogenic. Asbestos related diseases are preventable but are incurable. The prevention can only happen if one is saved from exposure to air borne asbestos fibers, which are always in a state of decay and erosion even when it is mixed with cement. Such fibers can be seen with naked eyes in the asbestos based roofs and other products like brake shoe and brake lining in almost all the vehicles.
What aggravates the situation in India is that among the most deprived and marginalized communities as many as 16.4 per cent in the rural areas and 20 per cent in the urban areas live and work under asbestos roofs. S0me 79 per cent of Indian Dalits live in such houses. This came to light from the 2011 Census figures released on the Scheduled Caste households by amenities and assets by the Office of the Registrar General & Census Commissioner.
Having been the chemicals minister, although Ram Vilas Paswan, Union Minister of Consumer Affairs, Food and Public Distribution is aware of the hazards of asbestos, he has not taken any step so far to save the consumers from asbestos products by announcing ban on them.
Having served as the Permanent Representative of India to the UN from 2009 to 2013, Hardeep Singh Puri, the new Minister for Housing and Urban Affairs, must pay heed to this unhealthy situation due to rampant presence of asbestos laden houses and buildings in cities and across the country. Notably, efforts are underway to make UN buildings asbestos free. As part of $2.1 billion renovation work from 2008 to 2014, the amount of asbestos that was removed from the United Nations complex in New York City complex was enough to fill three football fields fifteen feet high. The Geneva headquarters of the UN is also going to become asbestos free after he United Nations General Assembly in New York approved the renovation project for the Palais des Nations complex in Geneva. This complex hosts around 10,000 UN employees, which is more than the official headquarters in New York. The work has commenced this year and is estimated to cost $846.6 million. A report presented by the UN Report of the Secretary-General in July 2000 had undertaken the assessment of asbestos-containing materials at United Nations buildings located in Geneva, Vienna and Nairobi and at regional commission buildings in Addis Ababa, Bangkok, Beirut and Santiago and harmful effects of such materials on the health of staff members, delegates and other persons working in and visiting the buildings. Puri should order similar assessment for buildings in India. He should write to all the state urban development ministers and urban local bodies to stop usage of asbestos in all the municipalities and for some 7, 935 urban centres.
Although Narendra Singh Tomar, Union Minister of Rural Development, Panchayati Raj, and Mines has been apprised of the fatal consequences of continued use of asbestos because of which his mines ministry has technically banned its mining, so far he has not done anything to ensure that public health of rural folk is safeguarded. The minister should write to all the Panchayats to refrain from procurement of construction of asbestos cements sheets and other asbestos based products to ensure asbestos free villages.
Asbestos causes mesothelioma (cancer of the thin membranes that line the chest and abdomen) and cancers of the lung, larynx and ovary. India’s National Institute for Health and Family Welfare estimates secondary exposure to asbestos used in construction has resulted in higher incidence of cancer among those living under asbestos roofs. It is a commentary on the scientific temper of the country that even Yoga centres are being run under asbestos roofs like in Jawaharlal Nehru University (JNU) and the premises of medical and engineering colleges besides other public buildings which are laden with asbestos based products. Prakash Javadekar, Union Minister of Human Resource Development ought to intervene to ensure asbestos free educational institutions
On 24 August, 2017, Constitutional Supreme Court of Brazil decided with 8 votes against 2 that the Brazilian state of São Paulo has the right to forbid the production and selling of white chrysotile asbestos, a carcinogenic mineral fiber. As many as 10 Brazilian states prohibit use of this mineral fiber because of the incurable diseases caused by it. India’s Supreme Court and High Courts have consistently expressed their serious concerns regarding exposure to these carcinogenic mineral fibers and has asked the central and state governments to update their laws as per fresh resolution of International Labour Organisation (ILO), which has sought elimination of future use of white chrysotile asbestos to safeguard human health. But the governments in India have not complied with its directions so far.
Although mining of all kinds of asbestos is technically banned in India. According to Indian Minerals Yearbook published in December 2015 import of white asbestos from Russia, Kazakhstan, Brazil and China continues. It endangers the public health of present and future Indians.
Following the verdict, Brazilian São Paulo state has withdrawn the controlled use of asbestos law for the whole country. Other states will have to take similar action. Brazilian Supreme Court has already said that the production and the selling are unconstitutional. The President of the Supreme Court observed, “In concern of the environment, if any doubts, it must be prohibited so that the rights for us today and tomorrow won’t be lost for the ones that come after us.” Indian courts too should adopt this universally accepted precautionary principle and the inter-generational equity principle to save the public health of Indians like the Brazilian Court.
It is clear that the decision with regard to Brazilian São Paulo state has set an “important precedent” because the Court has excluded the law that allowed controlled use of this hazardous mineral fiber. The law that allowed usage of asbestos has been deemed unconstitutional
The Federal Supreme Court (STF) is the highest level of judicial system in Brazil, which is responsible for determining the constitutionality of laws. This Court has held that the extraction, processing, use and marketing of all forms of asbestos, including white chrysotile asbestos violate the Brazilian Federal Constitution.
Responding to the verdict, Fernanda Giannasi from Brazilian Association of exposure to asbestos (ABREA), a renowned leader of global anti- asbestos struggles said, “There is no more legal support to the controlled use of asbestos in Brazil. The important decision taken on 24 August means that there are no obstacles for the states and municipalities to prohibit asbestos. The public entities cannot give lame excuses for their failure to enact and enforce laws to safeguard people from exposure to hazardous fibers of asbestos. Now that the Brazilian Court has decided on the constitutionality of the matter, it is the prerogative of the Brazilian Parliament to prohibit use of this carcinogenic fiber.” She said, "The victory at STF is the result of extensive construction of social movements in defense of workers' health.” Fernanda Giannasi visited New Delhi in 2002 to ascertain the public health situation in the country and share her insights.
Notably, 10 Brazilian states and more than 35 Brazilian cities have valid laws banning asbestos. This verdict paves the way for the other cities and states to prohibit the toxic mineral fiber. No one can cite possibility of “safe and controlled use” as a ground to continue its usage of asbestos.
The core issue before the Court was the constitutionality of federal law which allowed use with restrictions on the exploitation and the use of asbestos in the variety of chrysotile, it’s adherence to rights to life, health and the environment. The validity of state laws and municipal authorities, who had banned white asbestos in their respective territories while the federal law permitted, was also before the Court that required ascertainment of the distribution of legislative powers between the federal government, states and municipalities.
The trial was conducted in two stages. At trial regarding the federal law authorizing the production and consumption of asbestos, the Court built a majority pro-banishment, for five (5) votes against 4 (four). Due to the prevention of two judges who had issued opinions on the cause before taking their seats in Court, the quorum of 11 (judges) was reduced to only 9 (nine). Thus, it was not possible to achieve the 6 (Votes) as required by the Constitution for a declaration on the constitutionality of federal law have general effect and binding.
A second phase of the trial undertook to resolve this impasse, to define in practice to achieve the banning of all forms of asbestos in Brazil. When examining the text of the state law of São Paulo that banned asbestos on its soil, the Supreme Court stated, by eight (8) votes against 2 (two), the full acceptance of the legal force of this measure.
The range of this pronouncement is not limited to a state. It is applicable for the whole country because it has assumed a national character. By a vote of 6 judges of the current composition of the Supreme Court, the validity of the ban approved in state laws is based precisely on the unconstitutionality of permissible federal law. As a consequence of a mere formal question to prevent the participation of a judge in the main proceedings, the unconstitutionality was not binding, although in practice this is what will happen.
After the trial, the President of the Court, Justice Carmen Lucia, clarified, through its press office that the decision effectively overturned the authorization of the use of white chrysotile asbestos throughout the national territory. During the trial, the President of the Court recalled that asbestos compromises the future of coming generations and defended its banishment "By the principle of precaution, in case of environment, in doubt whether to seal".
Justice Celso de Mello, dean of the Court said, "The Supreme Court declares the unconstitutionality of this provision which permitted the chrysotile asbestos, by an absolute majority, cut off from the universe national law a rule that permitted, even if through controlled use, the use of asbestos. The use of asbestos chrysotile is now sealed". Thus, the use of this type of asbestos is completely sealed in the country.
The lawyer Roberto Caldas, Mauro MENEZES and lawyers who represented before the Court the victims of contamination by asbestos, organized around the Brazilian Association of exposure to asbestos (ABREA) and the National Association of Attorneys of the work (ANPT) said, "It is ended the great war by banning of asbestos. Now let's take care of the aftermath: measures of achievement, service and repair just for victims."For the lawyer Mauro MENEZES also advocate the banning of asbestos in the gallery of the STF, the decision "reaffirms the vocation Brazilian constitutional, to require that the economic development note social guarantees and environmental population". Mauro MENEZES concluded, “The situation reveals that the federal law is moribund, it is in a terminal stage. When the Court declares its unconstitutionality, this law is no longer efficient in the national judicial order”.
In the aftermath of this verdict, the states and to the federal districts are under a logical and legal compulsion to bring bills for the banishment of asbestos in the states which have no laws prohibiting the carcinogenic asbestos as yet.
Brazil’s National Confederation of the Industrial Workers (CNTI) had initiated an action with the aim to get the law on the prohibition of asbestos in the state of São Paulo declared as unconstitutional and revoked. The Court did not heed the request and has endorsed the prohibition of this mineral fiber.
Brazilian Court found that the asbestos based products are not safe for people’s health and to the environment, which was in contradiction to the Constitutional provisions.
Taking cognizance of these development and continued harm to Indians, it is high time Ravi Shankar Prasad, Union Minister of Law and Justice introduced a bill to ban asbestos of all kinds in India.
The recent estimate is that asbestos is causing 194,000 occupational deaths globally every year. Notably, South Africa banned asbestos in 2008. Now that Brazilian court’s order has established the illegitimacy of asbestos use, it is high time BRICS (Brazil Russia, India, China and South Africa) governments make their present and future citizens safe from hazards of asbestos fibers. If Jagat Prakash Nadda, the Union Minister of Health and Family Welfare does not seek prohibition on the use of asbestos based products to safeguard public health he will be deemed guilty of dereliction of duty given the fact that Ministries of Environment and Labour have sought ban on asbestos. He must ensure creation of environmental and occupational health infrastructure and competent environmental and occupational health doctors to diagnose the asbestos related diseases.
Having been a health minister, Dr. Harsh Vardhan, the Union Minister of Science and Technology, Earth Sciences and Environment, Forest and Climate Change must stop granting environmental clearances to asbestos based factories to demonstrate consistency in his ministry’s approach. Santosh Kumar Gangwar, Union Minister of Labour and Employment must reiterate his ministry’s resolve to save workers from asbestos related diseases by eliminating asbestos related work from the industries.
Large reserves of asbestos are located mainly in China, Kazakhstan and Russia. The world production of asbestos was 1.9 million tonnes in 2013. Russia was the leading producer and accounted for 53% production followed by China (21%), Brazil (15%) and Kazakhstan (13%). So far countries like Brazil, China, India, Indonesia, Mexico, Russia, and USA are yet to ban asbestos. Suresh Prabhu, the new Commerce and Industry Minister ought to intervene at the earliest to safeguard Indians from continued exposure to foreign asbestos fibers. He must resist the unscientific approach of Ananthkumar, Union Minister of Chemicals and Fertilizers who has made India into a laughing stock among the comity of nations by inconsistently claiming that asbestos is not a hazardous substance at the meeting of the UN’s Rotterdam Convention on Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade in Geneva although domestic laws are quite clear about it being a hazardous substance. Prabhu must also persuade Arun Jaitley, the Union Finance and Corporate Affairs Minister to provide incentives to the alternatives of asbestos and refrain from making asbestos artificially cheaper as has been done in the past.
Taking note of the grave threats to the public health of people in
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.