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Letter to Dr V Rajagopalan, Secretary, MoEF asked about removal of asbestos from revised list of hazardous chemicals

Written By Gopal Krishna on Wednesday, August 28, 2013 | 6:00 AM

ToxicsWatch Alliance

To

Dr V Rajagopalan
Secretary
Union Ministry of Environment & Forests (MoEF)
Government of India
New Delhi

August 26, 2013

Subject-Hazardous asbestos, list of hazardous chemicals, revised schedule of rules for hazardous chemicals, Basel Convention, Rotterdam Convention and asbestos laden end-of-life ships 

Sir,

This is with reference to the revised schedule having list of hazardous chemicals under The Manufacture, Storage and Import of Hazardous Chemical (Amendment) Rules, 2000, The Manufacture, Storage, and Import of Hazardous Chemicals (MSIHC) Rules, 1989 and related issues. The former Amendment Rules has omitted ‘Asbestos’ from the list of hazardous chemicals which was there in the list of the latter Rules. 
I submit that the official 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. According to these Rules, any person responsible for importing hazardous chemicals in India is to provide the data of import to the concerned authorities, as identified in Column 2 of Schedule 5 to the Rules. The CPCB “has been identified as one of such Authorities. In order to study the inventory of Hazardous Chemicals being imported by various categories of industrial units in India, the data provided by these industrial units to the Central Pollution Control Board (CPCB) have been compiled.”
I submit that if it is not inadvertent it would appear scandalous as to why did MoEF took a position inconsistent with its own pre-existing list of hazardous chemicals.
I submit that asbestos is listed as a hazardous substance under Part II of Schedule-I of the Manufacture, Storage and Import of Hazardous Chemical Rules, 1989 under the Environment (Protection) Act, 1986 provided the List of Hazardous 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
I submit that the List of Hazardous Chemicals now has 684 hazardous chemicals after it was revised later under Manufacture, Storage and Import of Hazardous Chemical (Amendment) Rules, 2000. But surprisingly ‘Asbestos’ is missing from the revised list. It appears that ‘Asbestos’ was removed by a notification S.O. 57 (E), dated January 19, 2000. It is beyond comprehension as to why ‘Asbestos’ was removed from the list. The notification signed by you is available at: http://envfor.nic.in/legis/hsm/msihcar.html
I submit that Schedule I of Hazardous Wastes (Management, Handling and Transboundary Movement) Rules, 2008 under the Environment (Protection) Act, 1986 provides the List of Processes Generating Hazardous Wastes. The list has 36 processes generating hazardous wastes.  It may be noted that Production of Asbestos or Asbestos containing materials which generates Asbestos-containing residues, Discarded Asbestos, Dust/particulates from exhaust gas treatment is at the serial no. 15 in the list.      
I submit that Schedule VI of Hazardous Wastes (Management, Handling and Transboundary Movement) Rules, 2008 under the Environment (Protection) Act, 1986 that provides List of Hazardous Wastes Prohibited for Import and Export. The list had 30 such hazardous wastes which are also covered under UN’s Basel Convention on Transboundary Movement of Hazardous Wastes and Their Disposal. The list mentions Waste Asbestos (Dust and Fibers) at serial no. 16 with its Basel No. A2050.  
I submit that even 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:
I submit that I have engaged with some of the members of Supreme Court constituted High Powered Committee (HPC) headed by Prof. MGK. Menon (by order dated October 13, 1997) for examination of all matters relating to hazardous wastes. The HPC had dealt with issues of asbestos based industries and their wastes. Based on it the Court has passed the landmark order of October 14, 2003 seeking prior decontamination of ships in the country of export before it is allowed in Indian waters. In compliance of this order which established Basel Convention as part of right to life, the end-of-life ships need to be decontaminated of asbestos and asbestos wastes before they are allowed entry in Indian waters.  
I submit that in your role as Joint Secretary you headed an eight-member Committee Union Ministry of Environment & Forests that examined the issue of asbestos in 2001. The Committee was to evolve a policy/strategy that will deal with clearances for expansion of existing asbestos units as also new projects. The other members of the Committee included member-secretary of the Central Pollution Control Board, director of the National Institute of Occupational Health, Director-General of Mines Safety, director of Indian Toxicology Research Centre and Director-General of the National Council for Cement and Building Materials. The Ministry's office memorandum dated August 21, 2001 on the constitution of an expert committee had observed that asbestos industries have come under close scrutiny worldwide and many of the developed countries have either banned or are in the process of banning manufacture and/or use of asbestos and asbestos-based products due to their known adverse health impact. Facts and figures mentioned in the studies suggest that there is a need to evolve a comprehensive policy on asbestos. The committee was to review the environmental regulations already in force in the country and status of compliance by the industry. It was to study how the regulations in India compare with those in force in other countries. I wish to request you for a copy of the report of this Committee.     
I submit that as a member of the Supreme Court constituted Technical Experts Committee on Hazardous Wastes relating to Ship-breaking in 2006-7 that had asked National Institute of Occupational Health, (NIOH) to undertake an epidemiological study was planned to find out the
magnitude of asbestos related health problems and other disorders among ship breaking workers. The study observed that 15 (16 %) of 94 workers occupationally exposed to asbestos showed linear shadows on chest X-rays, and 26 workers (39%) showed restrictive impairment. But despite Supreme Court’s order dated January 27, 1995 fixing Rs 1 lakh for victims of asbestos related diseases these workers were not compensated. You may recollect that I had appeared before this Committee to make a submission regarding asbestos wastes as I was also the applicant in the Court in the case.

I submit that as a member of the Supreme Court Monitoring Committee on Hazardous Wastes you were seized with the issue of asbestos laden French aircraft carrier, Le Clemenceau in 2005-2006. You may recollect that this end-of-life ship was recalled by the French court due to hazardous substances like asbestos in the ship. You may recollect that I had appeared before this Committee to make a submission regarding asbestos wastes as well.
 
I submit that the United Nations Committee of Experts on the Transportation of Dangerous Goods classifies Chrysotile Asbestos in Hazard Class and Packing Group, UN number 2590, Class 9 – Miscellaneous dangerous goods and articles. Its International Maritime Dangerous Goods (IMDG) Code is UN No: 2590: Class or division 9.
I submit that earlier, on June 22, 2011 Indian delegation led by Ms. Mira Mehrishi, Additional Secretary, had supported the listing of Chrysotile asbestos as a hazardous chemical substance at the fifth meeting on Rotterdam Convention amidst standing ovation.
Let me take the opportunity to submit that I got a reply based on Department of Chemicals and Petrochemicals (DCPC)’s note dated June 18, 2013 from Union Ministry of Environment & Forests (MoEF) on the issue of Government of India’s position on hazardous substance chrysotile asbestos at the Sixth Conference of Parties of (CoP-6) of the Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade held during April 28-May 10, 2013 in Switzerland.
I have gone through the 7 page long note of the Department of Chemicals and Petrochemicals (DCPC), Union Ministry of Chemicals and Fertilizers on the subject of Chrysotile Asbestos titled ‘Department of Chemicals and Petrochemicals’ View on the use of Chrysotile Asbestos” in the country’ along with the MoEF’s letter.
I submit that MoEF’s contention based DCPC’s note stating that “On the basis of the said note, the listing of Chrysotile Asbestos under Annex ‘A’ of Rotterdam Convention at CoP-6 during April 28th -May 10th 2013 at Geneva could not be supported” is misplaced. 
I have carefully read the note of the ‘line department’, i.e. Department of Chemicals and Petrochemicals (DCPC), Union Ministry of Chemicals and Fertilizers on the subject chrysotile asbestos.    

I submit that the note of the DCPC reveals that it has failed to understand the purpose of the Rotterdam Convention and ignorance about the objective of the Convention.
I submit that that Article 1 of the Rotterdam Convention reads: “The objective of this Convention is to promote shared responsibility and cooperative efforts among Parties in the international trade of certain hazardous chemicals in order to protect human health and the environment from potential harm and to contribute to their environmentally sound use, by facilitating information exchange about their characteristics, by providing for a national decision-making process on their import and export and by disseminating these decisions to Parties.”
I submit that the note is irrelevant from the point of view of the objective of the Convention for which it was prepared. While one disagrees with the findings of the conflict of interest ridden study conducted by the National Institute of Occupational Health, (NIOH), it is evident that even this study does not state that chrysotile asbestos is not a hazardous chemical.
I submit that had NIOH study concluded that Chrysotile Asbestos is not a hazardous chemical it may have become relevant. But even then it would have been legally unsustainable because under Indian laws chrysotile asbestos is a hazardous chemical.  
I strongly disagree with the concluding sentence of the DCPC’s note saying, “In view of the above, India may take a stand in the next CoP meeting of Rotterdam Convention for not inclusion of chrysotile asbestos in Annexure-III of Convention.  
I submit that the NIOH study which has been mentioned was admittedly tainted because of proven conflict of interest and thus its inference was questionable. This was admitted in the Parliament. The Press Information Bureau (PIB) release with regard to the same is attached.
 I submit that the flawed conclusion of the DCPC’s note titled ‘Department of Chemicals and Petrochemicals’ View on the use of Chrysotile Asbestos” in the country’ is quite stark and will not stand scrutiny of sound logic.
I submit that at the first meeting, the Chemical Review Committee (CRC) under the Rotterdam Convention on the Prior Informed Consent (PIC) Procedure for Certain Hazardous Chemicals and Pesticides in International Trade, the committee agreed to recommend to the Conference of the Parties that Chrysotile Asbestos should be listed in Annex III of the Rotterdam Convention. The CRC is a group of government designated experts established in line with Article 18 of the Convention that evaluates candidate chemicals for possible inclusion in the Convention. Chrysotile (serpentine forms of asbestos) is included in the PIC procedure as an industrial chemical.
I submit that it also merits attention as to whether the industry representatives went to this UN conference on their own expense or government sponsored their visit. Asbestos Cement Products Manufacturers’ Association (ACPMA) which accompanied the delegation is facing a probe by Competition Commission of India (CCI) after a reference from the Serious Fraud Investigation Office (SFIO). CCI has said in its quarterly newsletter that “The market of asbestos cement sheets consists of 20 big firms and 68 manufacturing units, of which top six players hold 87 per cent of the market share”.
The newsletter is available here: http://www.cci.gov.in/Newsletter/Newsletter_Dec.pdf   
I submit that what is poisonous and hazardous within India cannot be deemed by MoEF under the influence of DCPC and ACPMA at the conference of Parties of Rotterdam Convention as non-poisonous and non-hazardous. The ministry must revise its untenable position to avoid appearing ridiculous before the international community. You may consider an internal inquiry to ascertain how was the conclusion of its note on chrysotile asbestos and Rotterdam Convention arrived at. 
Let me also take the opportunity to draw your attention towards the Vision Statement of Union Ministry of Environment & Forests that says, “Alternatives to asbestos may be used to the extent possible and use of asbestos may be phased out.” The Vision Statement is available at: http://moef.nic.in/divisions/cpoll/envhealth/visenvhealth.pdf
In view of the same I urge you as to ensure that a moratorium to put on the environmental clearances being given to hazardous and carcinogenic asbestos based factories which are facing bitter resistance in Bihar, Odisha and elsewhere. So far villagers of Muzaffarpur, Vaishali in Bihar and Bargarh in Odisha have managed to stop construction of asbestos based factories.
I submit that MoEF seems to feign ignorance about how the Union Ministry of Finance has announced that asbestos related diseases will be covered under Rashtriya Swasthya Bima Yojana (National Health Insurance Scheme) but this is hardly sufficient in the absence of environmental and occupational infrastructure. MoEF has also failed to pay attention to World Bank’s Guidance note on asbestos which instructs that asbestos building products not be used in Bank projects.  Where Bank projects involve work in structures where asbestos is present, conformity with internationally recognized standards is required. The Guidance Note of the Bank is available at: http://siteresources.worldbank.org/EXTPOPS/Resources/AsbestosGuidanceNoteFinal.pdf
I wish to inform you that an Advisory Committee of Union Ministry of Labour has been set up to implement Supreme Court order issued 18 years ago on January 27, 1995 and repeated on January 23, 2012. The ministry has 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. Besides WHO’s resolution of 2005 seeking elimination of future use of asbestos.
I wish to draw your attention towards the ongoing case against asbestos related diseases in the National Human Rights Commission (NHRC) wherein MoEF has also given its submission but it has not shared the Vision Statement of the Ministry with it. The reply filed by Shri R B Lal, Deputy Director, Hazardous Substances Division, MoEF is quite evasive its does respond to all the questions raised in the attached NHRC’s notice to MoEF. The reply does not disclose that more than 50 countries have banned production, use, manufacture and trade of the hazardous mineral fiber, Asbestos. These countries are: Algeria, Czech Republic, Iceland, Malta, Seychelles, Argentina, Denmark, Ireland, Mozambique, Slovakia, Australia, Egypt, Israel, Netherlands, Slovenia, Austria, Estonia, Italy, New Caledonia, South Africa, Bahrain, Finland, Japan, Norway, Spain, Belgium, France, Jordan, Oman, Sweden, Brunei, Gabon, South Korea, Poland, Switzerland, Bulgaria, Germany, Kuwait, Portugal, Turkey, Chile, Greece, Latvia, Qatar, United Kingdom, Croatia, Honduras, Lithuania, Romania, Uruguay, Cyprus, Hungary, Luxembourg and Saudi Arabia. All the 27 countries of European Union have banned it. The reply maintains silence about the approval and the recommendations of the Chemical Review Committee under Rotterdam Convention that has endorsed listing of chrysotile asbestos in the PIC list of hazardous substances. The NHRC’s notice is attached.
I submit that in terms of the September 14, 2006 notification of the MoEF, asbestos based products are classified as category – A projects and the authority for approval of TOR & issue / reject of  Environmental Clearance is Ministry of Environment & Forests (MoEF), Government of India on the recommendations of Expert Appraisal Committee.  This ongoing clearances of asbestos based factories does not factor in the Vision Statement that suggests phase out of asbestos.
I submit that Environmental Impact Assessment, Guidance Manual for Asbestos Based Industries, Union Ministry of Environment & Forests reads: “The occupational health surveillance program is to address pre employment health examination and periodic health examination. Every employee on his appointment for a job with a possibility of exposure to airborne asbestos shall get the pre-employment medical examination done within stipulated days of his employment, by the employer. Scheme for health surveillance shall include exposure data at each pertinent work place, periodical examination of workers, X-ray examination for radiological changes, lung function test for restrictive disorder and clinical examination for early detection of signs of asbestosis. These tests are to be recorded for pre-employment, periodic surveillance and at cessation of employment as per the concerned state government regulations. Occupational health surveillance is to be carried out by occupational physician or chest physician trained in occupational medicine. The occupational health surveillance program is to be drawn for all the employees potentially exposed to asbestos dust and it is to be provided free of cost.”
The Manual reads: “The medical records is to be maintained and stored for period of 15 years following the termination of employment or for 40 years after first day of employment, whichever is later. The medical records is to be maintained covering the details of pre-employment examination, the periodical medical examinations, medical examination done at other times, if any and the medical examinations conducted at cessation of employment and further follow-up examinations, where done.”
The Manual requires that “The records shall also be maintained of the individual employee’s occupational exposure profile to asbestos, specific work practices, and preventive measures prescribed, if any. The occupational health surveillance program is to address the following aspects: •Pre-employment medical examination • Periodic medical examination • Medical employment at cessation of employment • Maintenance of medical records and • Health education”.
I submit that the requirements underlined in the Manual has neither been complied with in the past nor are they being adhered to at the present and it is quite unlikely that it will be done in future.  The Manual refers to WHO’s “Environmental Health Criteria 203; Chrysotile Asbestos (http://www.who.int/en/)” but fails to incorporate the criteria. 
It is quite evident that the revised Part II of Schedule I in Manufacture, Storage and Import of Hazardous Chemical (Amendment) Rules, 2000 has omitted the hazardous chemical- Asbestos from the list of hazardous chemicals which existed in the Part II of Schedule prior to the amendment. If it was not inadvertent kindly share the studies which concluded that it is a hazardous chemical prior to 2000 and the studies which concluded it is not a hazardous chemical post 2000 notification.     
Therefore, there is a compelling logic and legal and moral responsibility to revise and add asbestos in the hazardous chemicals and reject legally and logically unsustainable note of DCPC to the MoEF in order to save India’s reputation among the comity nations by being consistent with domestic laws when representing the country in international legal negotiations on Rotterdam Convention.

  
Thanking You
Yours Sincerely
Gopal Krishna
ToxicsWatch Alliance (TWA)
Mb: 09818089660
Phone: +91-11-2651781
Fax: +91-11-26517814
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