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Pollution Control Board debunks asbestos company’s challenge to its Chairman’s power to cancel NOC

Written By Gopal Krishna on Tuesday, July 16, 2013 | 6:52 AM

New application seeks high level probe to ascertain corruption in grant of NOC to the company

Company argues 'asbestos is not a carcinogen'


Patna: In the Patna High Court, the core issue of challenge by the asbestos company to the power of the Chairman, Bihar State Pollution Control Board to cancel its No Objection Certificate (NOC) has been debunked through the affidavit of the Board. In any case NOC of the company has admittedly expired on May 7, 2013. The matter came for hearing today in the court of Justice J N Singh.

As per High Court’s order “challenging the order of the Chairman (BSPCB), is now the core of issue”. The Court has observed that now asbestos company’s petition CWJC No.4802 of 2013 filed against the Bihar Government and others has been replaced by CWJC No. 9064 of 2013, which now the “main case”.

Strangely, company's counsel argued today that 'asbestos is not a carcinogen', which is akin to saying that Endosulfan is not an organochlorine or water is not H2O. The fact is that EIA report of the company itself admits that asbestos causes lung cancer.      

In its affidavit BSPCB has stated that “The Board has delegated powers to the Chairman with the Authority to grant/refuse/withdraw/consent both in respect of the Water & Air Acts subject to the condition that the list of consent applications granted/refused/withdrawn is placed in the meeting of the Board.” It further contends that “unless the petitioner (the company) conforms to the siting criteria of the Board’s Guidelines, question of consideration of application for its renewal on its own does not arise”. 

Responding to a query from ToxicsWatch Alliance (TWA), Vijay Panjwani, Counsel, Central Pollution Control Board (CPCB) in the Supreme Court in a letter dated July 9, 2103 said, “First it is wrong to establish any industrial process within 500 meters of habitation/school, no pcb (Pollution Control Board) wud give NOC if it is in its senses. …The PCB is right in cancelling the NOC. The High Court shud have not interfered.” He added, “It is recommended in asbestos case that utmost care and caution is to be taken becoz of hazardous nature of asbestos and the fibre it spreads” on July 10, 2013.

In a written response to TWA’s query, Sunita Narain, Director General of Centre for Science and Environment has stated that it has taken cognizance of the “information on the cancellation of NOC given to Utkal Asbestos Plant by the Bihar Pollution Control Board. We will definitely see how we can follow up on it.”

The notification under Environment (Protection) Act, 1986 with regard to delegation of power to Chairman, State Pollution Control Board dated April 10, 2001 reveals that the Chairman does have the power which has incorrectly been challenged by the company.

This is because asbestos is listed as a hazardous chemical under Part II of Schedule-I of the Manufacture, Storage and import of Hazardous Chemical Rules, 1989 under the Environment (Protection) Act, 1986 provides the List of Hazardous and Toxic Chemicals. This list has 429 chemicals. Asbestos is at the serial no. 28 in the list. This Rule and the list is available on the website of Union Ministry of Environment & Forests. Its url is: http://envfor.nic.in/legis/hsm/hsm2.html http://envfor.nic.in/legis/hsm/hsm2sch1.html 

Under Factories Act, 1948, the List of 29 industries involving hazardous processes is given under Section 2 (cb), Schedule First, asbestos is mentioned at serial no. 24.  The Act defines "hazardous process" as “any process or activity in relation to an industry specified in the First Schedule where, unless special care is taken, raw materials used therein or the intermediate or finished products, bye-products, wastes or effluents thereof would--(i) cause material impairment to the health of the persons engaged in or connected therewith, or (ii) result in the pollution of the general environment”.  This leaves no doubt that asbestos is a hazardous substance. The Act is available at:
http://labour.nic.in/upload/uploadfiles/files/ActsandRules/Service_and_Employment/The%20Factories%20Act,%201948.pdf

In a new development, an application has been filed in the same case in the High Court seeking high level probe to ascertain corruption in the grant of NOC and environmental clearance to the company.   The application contends that NOC was granted “wrongly and illegally’ to establish a production unit of asbestos sheets and pipes. It contends that there was “collusion” between the company and “the field staffs of the Board.” In a separate affidavit it states that “the order of NOC was obtained fraudulently which has been cancelled on detection of the fact by the competent authority…” The application submits that since “the NOC has been legally cancelled”, it “needs no interference”.    

It is significant that the statement made in the writ application affecting the right of general public and environment has not been specifically denied.        
With this the fate of Utkal Asbestos Limited (UAL) Industries Ltd for setting up of a hazardous asbestos factory in the fertile agricultural land of Vaishali’s Chaksultan Rampur Rajdhari near Panapur in Kanhauli Dhanraj Panchayat in Goraul block appears sealed in the High Court.

Even the Inventory of Hazardous Chemicals Import in India lists ‘asbestos’ at serial no. 26 as one of the 180 hazardous chemicals in international trade which is imported in India. This inventory was prepared by Central Pollution Control Board (CPCB), under Union Ministry of Environment & Forests, Govt. of India prepared in September, 2008 with a foreword September 24, 2008 by Shri J. M. Mauskar, the then Chairman, CPCB and Additional Secretary, Union Ministry of Environment & Forests This was done pursue of Government of India’s “Manufacture, Storage, and Import of Hazardous Chemicals (MSIHC) Rules, 1989” under the Environment (Protection) Act, 1986.

In a related development, on June 27, 2013, the Tokyo High Court upheld a decision by the Tokyo District Court which had found that a 61 year-old lung cancer victim exposed to asbestos at work had a legitimate work-related injury; the government's criteria which barred such a claim were, the Court said, "unreasonable." The claimant had worked as an engineer at a steelmaking plant from 1973-1984. Officials refused to recognize his claim on the basis of a "low" lung fiber burden. It is thought this ruling will benefit four other claimants with similar lawsuits in Tokyo, Osaka and Kobe. See:
http://mainichi.jp/english/english/newsselect/news/20130628p2a00m0na011000c.html

Underling the importance of the case in Patna High Court, on June 20, 2013, the Asbestos Safety and Eradication Agency Bill was passed by the Australian Parliament. The new Agency will start work on implementing the National Strategic Plan for Asbestos Awareness and Management on July 1. This news was announced in a press release issued by MP Bill Shorten, Minister for Employment and Workplace Relations.
See: http://ibasecretariat.org/australia_media_rel_jun_20_2013.pdf

The company is represented by Senior advocate Binod Kanth and the BSPCB is represented Mr. Shivendra Kishore and State Government is represented by Lalit Kishor, Principal Additional Advocate General. Villagers’ Khet Bachao Jeevan Bachao Jan Sangharsh Committee (KBJBJC), Vaishali is represented by Advocate Abhimanyu Sharma.

For Details: Gopal Krishna, ToxicsWatch Alliance (TWA), Mb: 8227816731, 09818089660, Web:www.toxicswatch.org, E-mail:goplalkrishna1715@gmail.com
Ajit Kr Singh, Convener, Khet Bachao Jeevan Bachao Jan Sangharsh Committee
(KBJBJC), Vaishali, Mb: 09931669311, E-mail:ajeetsinghpushkar@gmail.com
 Abhimanyu Sharma, Advocate, Patna High Court, Mb: 9631290074
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