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High Court fears Bhopal Gas Tragedy like situation from Bihar's Asbestos Plants

Written By Gopal Krishna on Saturday, October 05, 2013 | 7:34 AM

CPCB Committee of High Court  to submit its report on Patna High Court on October 7

CPCB Committee urged to visit Bhojpur's illegal Asbestos Plants in Giddha, Koilwar and Bihiya

RTI reply reveals blunders by Bihar State Pollution Control Board, High Court refers to it as "defunct'

Court not being apprised by BSPCB of illegal existence of the Bhojpur's Asbestos plants
 

October 5, 2013: A Central Pollution Control Board (CPCB)'s Committee set up by Patna High Court bench of Justice J N Singh visited the controversial site of the proposed asbestos based factory of Utkal Asbestos Limited (UAL) of Utkal Asbestos Limited (UAL) on September 15, 2013. The Court apprehended a Bhopal Gas Tragedy like situation from Bihar's asbestos plants. It has set up the Committee to "safeguard the humanity from health hazards and any recurrence of Bhopal Gas Tragedy." The Committee has been urged to inspect the Bhojpur based illegal asbestos plants as well. The Court will hear the matter on October 7, 2013.

This was a result  of the case filed by Utkal Asbestos Limited (UAL), Kolkata contesting the order of the Bihar State Pollution Control Board (BSPCB) cancelling its Consent to Establish (No Objection Certificate) for a proposed asbestos based factory, at Village: Chak Sultan Rampur Rajdhari, near Panapur in Kanhauli Dhanraj Panchayat, Goraul, Mahuwa, District- Vaishali, Bihar due to violation of BSPCB’s Guidelines regarding the battery limit of “a distance of minimum 500 meters from the National/State Highway, Railway line, river and human habitation” proximity to the residential areas.

Patna High Court asked CPCB to constitute a 5 member committee undertake measurement of the residential areas from the asbestos plant under construction in its order dated August 19, 2013 and submit the report by September 19, 2013. CPCB Committee has not submitted the report so far and has sought time till October 7, 2013.    The five members of the CPCB Committee are:
1.     Shri D Brahmaimaih, Scientist 'C', Zonal Office Vadodara
2.     Dr S. S. Bala, Scientist 'E', CPCB, Delhi
3.     Shri Sundeep, Scientist “D”, CPCB, Zonal office Kolkata
4.     Sh V.P Yadav, Scientist “D”, CPCB, Delhi
5.     Shri P K Gupta, Scientist “D”, CPCB, Delhi

Patna High Court order of August 19, 2013 reads: “After marathon arguments for days, this Court has felt the necessity to involve the Central Pollution Control Board (for short “the Central Board”) in the matter only because this Court has now gathered an impression that the actions of the Bihar State Pollution Control Board (for short “the State Board”), at least in this matter, have not been above board.”

It further observes, “The State Board has laid down some norms, in the form of a “Guidelines”, which may or may not be statutory, but has been held valid by another Division Bench of this Court. Hence the same has to be followed by all entrepreneurs proposing to set up any industry to which the Guidelines may be applicable. At least this much is clear that these “Guidelines” are meant for protection of environment and prevention of possible health hazard to the people for generations.”

The Court observed, “…it will not be proper for this Court to disbelieve only that part of the report of the State Board which is against the petitioner and accept the part which may be in its favour. Hence, in the opinion of this Court, the said Committee of the Central Board is necessarily required to be given a free hand in inspection, measurement and report in the matter. Moreover, in view of the order of the Division Bench, petitioner was also at liberty to approach it in the said PIL itself to enable the Division Bench to monitor the matter. But instead of approaching the Division Bench, petitioner itself has chosen to file this fresh writ application in this Court. Hence, it cannot raise a grievance that this Court is taking the matter to the realm of public interest or proceeding beyond the orders of the Division Bench, by passing this order in the circumstances elaborated above.”

The order reads: “This Court has indicated earlier that the conduct of the State Board and its officials have been such that it is difficult for this Court to place reliance on facts and figures containing in their affidavits and documents. Hence, this Court considers that instead of confining the inspection by the said Committee of the Central Board only to measurement of the distances, it is appropriate that it should hold inspection in the light of the established norms for setting up of Asbestos manufacturing industry as applicable in the Country.”

The Court’s direction reads: “After careful consideration of the matters in which this Court requires assistance of the Central Board, this Court formulates some queries for the Central Board to answer and issues some directions for it and others to comply. They are:-

(i)              – Whether the norms contained in the Guidelines framed by the State Board are in conformity with all India norms and with the same yardsticks and the same requirement of specifications for establishment of an industry?

(ii)            – Whether any State Pollution Control Board has the liberty to relax the norms in favour of any industry, already running or about to be established, in an industrial area, or elsewhere ?

(iii)          – The Central Board shall also take into account the provisions of Item 27 of Schedule-I of the Environment (Protection) Rules, 1986, providing for parameters for emissions for all types of Asbestos manufacturing units and shall express its opinion regarding its effect and import on established norms for setting up of an Asbestos manufacturing unit as applicable in the Country.

(iv)          – The Central Board is directed to constitute a committee of at least five of its qualified and experienced officers.

(v)            – The said Committee shall draw up a programme to visit the site of the petitioner for inspection, preferably on a holiday.

(vi)          – The said Committee shall inform its programme to the State Board, the District Magistrate, Vaishali, the Superintendent of Police Vaishali and the District & Sessions Judge, Vaishali.

(vii)        – The District Magistrate shall co-ordinate and shall see to it that the Committee of the Central Board is given all assistance and all facilities during its visit and in the inspection of the site of the petitioner.

(viii)      – The Superintendent of Police, Vaishali shall see to it that there is no hindrance to the said Committee in the visit of the site of the petitioner and its inspection. He shall particularly see that no member of public creates any unruly scene on the site and during the inspection and shall, if necessary, cordon off such area for such time as may be required.

(ix)          – The District and Session Judge, Vaishali is requested to depute a judicial officer, of the rank of Additional District and Session Judge to witness the entire visit and inspection of the site of the petitioner by the said Committee. After the completion of inspection, he shall submit his report, through the District and Session Judge, Vaishali, to this Court in this case, in a sealed cover within a week, in which he shall also report about the persons present during the inspection.

(x)            – The Committee shall identify the location of the source of emission/ Chimney and the battery area of the proposed unit of the petitioner, in reference to the revised plan submitted by the petitioner before the Division Bench and available in a sealed cover with Sri Shivendra Kishore, learned counsel for the State Board, and hold the inspection of the site and take measurements in the back ground of the established norms for setting up an asbestos manufacturing unit.

(xi)          – The said Committee shall submit its report, with its recommendations in respect of establishment of petitioner‟s industry, to this Court in this case, preferably within one month from today.

(xii)        – During the inspection by the said Committee, one representative of the State Board, one representative of the petitioner along with its technical staff to aid and assist shall and Sri Shivendra Kishore, learned counsel of the State Board and Sri Mukul Sinha, learned counsel for the petitioner, if they desire, may be present to witness the inspection.

The Court aptly asked, “Does it mean that, in spite of the entire State of Bihar having been declared “Air Pollution Control Area” long back, the industries running in the industrial areas in the State are not required to follow the norms and are permitted to cause environmental pollution and health hazard to the people residing around the industrial areas and to their coming generations?”

In its last order dated September 19, the High Court stated that it awaits the report of the CPCB Committee.

In the meanwhile, ToxicsWatch Alliance (TWA) which has been directly involved in the case in question from the very  outset and had participated in the formal tripartite negotiations conducted by the Vaishali District Administration, has written to the CPCB Committee urging it to visit the Bhojpur's illegal asbestos based plants in Giddha, Koilwar and Bihiya. TWA spoke to the members of the CPCB Commitee as well in this regard.

TWA's letter to CPCB Committee is copied to Ajay Tyagi, Chairman, Central Pollution Control Board (CPCB), Chief Secretary, Government of Bihar, Dipak Kumar Singh, Secretary, Department of Environment & Forests, Government of Bihar, Prof. Subhash Chandra Singh, Member, CPCB & Chairman, Bihar State Pollution Control Board, J. S. Kamyotra,   Member Secretary, CPCB, Manoj Kumar Singh, Member Secretary, Bihar State Pollution Control Board, Abhijit Chattopadhaya, officer-in-charge, Zonal office, CPCB, Kolkata, Chandra Bhushan Deputy Director General, Centre for Science &
Environment, New Delhi and Abhimanyu Sharma, Lawyer, Patna High Court who represents the public interest and Vijay Panjwani, Lawyer of CPCB in the Supreme Court.

High Court has aptly observed in its August 19,  2013 order that set up the CPCB Committee that “…In the circumstances, this Court is really surprised with the stand of the State Board that the norms  have been relaxed for the two other asbestos manufacturing units in operation from before, only on the ground that they are running in the respective industrial areas.” TWA has argued that in the light of this observation the CPCB  Committee must take note that Bihar State Pollution Control Board (BSPCB)  is adopting double standards in the matter of cancellation of Consent to  Establish-cum- No Objection Certificate (NOC) given to asbestos companies  in Bhojpur and Vaishali. The two companies mentioned by the Court are in fact in the State of Bhojpur.

The RTI reply from the BSPCB reveals the blunders and manifest inconsistencies especially with regard to Bhojpur's Giddha based factory which the Court has also pointed out.   

The Public Information Officer of Bihar State Pollution Control Board has sent a reply annexing the reply of S.P Rai, Assistant Environment Engineer, Bihar State Pollution Control Board dated On September 19, 2013 stating the following on the basis of the available records in the office:
1.    The E.I.A. report of Ramco Industries is a total of 262 pages
2.    The E.I.A. report of Nibhi Industries is not available in the office
3.    The proceedings of the public hearing of Ramco Industries is a total of 9 pages
4.    There is no information about the public hearing by Nibhi Industries Pvt Ltd
This wit reference to Bihiya, Bhojpur based Asbestos factory of Ramco Industries and Giddha, Koilwar, Bhojpur based Asbestos factory of Nibhi Industries. It is astounding and a case of environmental lawlessness that the Giddha based factory got the NOC and environmental clearance without any public hearing. It is evident that Court is not being apprised by the BSPCB of the illegal existence of the Bhojpur's plants. 

In such a backdrop, the Court has directed in the penultimate paragraph of its August 19, 2013 order that set up the CPCB Committee that  “Let a copy of this order be handed over to Mr. Umesh Narayan Dubey,  learned counsel appearing for the Central Board along with one copy of the
pleadings of the respective parties, which shall be served on him latest by Friday, for onward communication to the authorities of the Central Board.”

These observations of the Court there is a compelling logic for the CPCB Committee to examine the claims of  the BSPCB, UAL with regard to the “two other asbestos manufacturing units  in operation from before, only on the ground that they are running in the
respective industrial areas” mentioned in the same order by examining the procedural violations in Bhojpur’s Bihiya and Giddha, Koilwar. The one at  Bihiya is run by Ramco asbestos company and the other at Giddha, Koilwar  was set up by Nibhi Industries but is illegally being run by UAL without  Environment Impact Assessment (EIA), public hearing on a fake ground that  it is not required for ‘industrial areas’.

The asbestos factory unit at Bhojpur’s Bihiya is within 100 meters of human habitation in violation of the BSPCB's Guidelines prohibiting such plants in 500 meter area of residential arae. This plant has questionable environmental clearance for one unit of asbestos based factory but it is running two units at the same location. The asbestos based factory at Giddha, Koilwar is also in proximity of human habitation is exactly in front of Aryabhat Knowledge University,  Trident BEd College and Bihar College of Education. One worker was crushed to death in  this factory in June 2013. In its submission to National Human Rights Commission, BSPCB has submitted that a show cause notice was issued to this plant.  

In contempt of Supreme Court’s order dated January 27, 1995, these “two other asbestos manufacturing units” are not maintaining  and maintaining the health record of every worker, not conducting Membrane  Filter test to detect asbestos fibre and not insuring health coverage to  every worker. It is reliably learnt that the company does not have qualified occupational health doctors to undertake these tasks. The company should be asked for a list of workers employed in the factory, their health records and the qualification of the doctor assigned to undertake their health checkup.    

The Court has observed that the environmental  clearance given by Expert Appraisal Committee of Union Ministry of  Environment and Forest dated 23.2.2012 for UAL’s Vaishali unit without  physically verifying the distance between the location of the proposed asbestos factory and the residential areas. This holds true for Bhojpur based asbestos factories as well. Bhojpur’s asbestos based factories are manifestly in violation of environmental regulations and BSPCB’s guidelines applicable against location of hazardous asbestos factories in the areas of human habitation.

Although belated BSPCB has done the right thing by  citing its battery limit of “a distance of minimum 500 meters from the National/State Highway, Railway line, river and human habitation” to outlaw the proposal of asbestos factory in Vaishali by UAL company. The same should be applied to asbestos based toxic factories of UAL and Ramco Industries in Bhojpur.

High Court’s order reads: “Hence, this Court considers that instead of confining the inspection by the said Committee of the Central Board only to measurement of the distances, it is appropriate that it should hold inspection in the light of the established norms for setting up of Asbestos manufacturing industry as applicable in the Country.” This clearly creates a logic compulsion for the CPCB Committee to visit the “two other asbestos manufacturing units” in Bhojpur that has been brought to its notice by the same order which has set up the Committee. It will appear to be a stark act of omission on the part of the CPCB Committee if the same is ignored.High Court may ask the Committee to visit the Bhojpur's asbestos plants as well if they do not do so. 

TWA seeks inspection of the Bhojpur based “two other asbestos manufacturing units” noted by the High Court and in compliance of the Court’s order in the interest of public health and human rights of the residents of Bhojpur.   

For Details: Gopal Krishna, ToxicsWatch Alliance (TWA), Mb: 09818089660, 8227816731, E-mail:gopalkrishna1715@gmail.com, Web: www.toxicswatch.org




 




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