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UTKAL ASBESTOS LIMITED CASE AGAINST BIHAR GOVERNMENT DISPOSED OFF IN HIGH COURT

Written By Gopal Krishna on Thursday, October 31, 2013 | 4:52 AM



 
Central Environment Ministry misled single judge bench of Patna High Court on proposed hazardous asbestos factory

Patna High Court's double judge bench has sought Strict Compliance with Guidelines 

Central Environment Ministry's recommendation is contrary to Division Bench's order which BSPCB has complied with

Respondent to seek high level corruption probe in the matter

October 31, 2013: The case of proposed hazardous and lung cancer causing asbestos based factory of Utkal Asbestos Limited (UAL), as per the website of Patna High Court, Civil Writ Jurisdiction Case (CWJC) No.9064/2013, M/s UAL Industries Ltd Vs. State Of Bihar & others has been "DISPOSED 28 Oct 2013". High Court heard the matter on October 28, 2013. Bihar State Pollution Control Board (BSPCB) and the lawyer representing villagers of Vaishali have disputed the questionable recommendations of the CPCB.
As of October 31, 2013, the text of the order has not been made available either on the Court's website or to all the respondents. 

It is noteworthy that CPCB has claimed to be “an independent agency” in its submission before the High Court but this is factually incorrect because Prof. Subhash Chandra Singh, Chairman, BSPCB is one the member of the 17 member Board of CPCB. This claim is manifestly misleading. It has come to light that I.A. No. 5358/2013 in CWJC) No.9064/2013 filed on August 8, 2013 whereby CPCB sought impleadment in the case and argued for “criminal prosecution against the State Board official for misleading” was never made available to the respondents. Here State Board refers to BSCPCB.        
BSPCB in its supplementary counter affidavit in the CWJC No. 9064/2013 filed on October 25, 2013 on behalf of Chairman, BSPCB and Member Secretary, BSPCB, Patna has categorically submitted that “The report (of CPCB) puts emphasis on the maximum GLC (Ground Level Concentration) of pollutants released from the vent/stack i.e. up to a distance of 200 meters from the vent, but has lost site of the fact that location of an industrial unit gives rise to many industrial/commercial activities, accompanied by the apprehension of accidents, impact of which may not remain confined to 200 meters.” Notably, High Court in its August 19, 2013 order has apprehended “recurrence of Bhopal Gas Tragedy”. But unmindful of the epidemic of asbestos-related diseases & deaths CPCB has recommended setting of asbestos factory in Vaishali.

CPCB has turned a blind eye towards two asbestos factories of Bhojpur despite Patna High Court’s specific reference to violations of environmental norms by them.

BSPCB in its supplementary counter affidavit further submits, “The committee (of CPCB), in his report, has failed to appreciate that the respondent Board (BSCPCB) did not ask for a revised lay out plan from the Petitioner unit, because it wanted only the vent/stack to be shifted from one location to another. In fact, it was concerned with the entire battery limit and its distance from different landmarks “Indeed mere shifting of vent from one location to another location makes a mockery of the requirement for ‘revised layout plan” because admittedly there are multiple locations of emissions in the plant and that makes the whole plant as a polluting unit.     
In a stark act of omission on the part of CPCB, BSPCB in its supplementary counter affidavit contends, “Under the heading of Field-observations, the Report (of CPCB) gives details of distance of different landmarks from the stack/vent of the proposed unit (of Utkal Asbestos Limited) and not from the battery limit. Periphery of the vent has been defined as the battery limit by the committee (of CPCB) and rest of the installations have been ignored for the purpose.”   This is eminently true.  
In a remarkable measure to ensure compliance with its Guidelines, BSPCB in its supplementary counter affidavit submits, “The Environmental Clearance granted to the petitioner unit (proposed factory of Utkal Asbestos Limited) vide letter, dated February 23, 2012 imposes, amongst other conditions, a condition that the project authorities must strictly adhere to the stipulations made by the Bihar Pollution Control Board and the State Government.” The unit, therefore, should have complied with the distance criteria as stipulated under the State Board’s Guidelines for siting of industries i.e. 500 meters (general conditions: (i) at page 62 of the Report) [of CPCB].  

BSPCB in its supplementary counter affidavit concludes, “That, in view of the aforesaid observations by the respondent Board the petitioner’ proposed unit for manufacturing of white chrysotile asbestos sheet may not be permitted at the proposed site till they find for themselves a site conforming to the Board’s Guidelines for siting criteria.”  

Notably, judgement of the Patna High Court's Division Bench has sought Strict Compliance with norms and guidelines dated November 15, 2013. BSPCB has complied with this judgment by cancelling the NOC of the UAL’s proposed plant on April 16, 2013 citing the same besides its Guidelines. Now an order by a single judge bench overturning the cancellation order may create a legal situation wherein BSPCB will be in fix as to which of the two order to comply with. And whether Division Bench order will prevail or single judge bench order will prevail?     

Thus, BSPCB has underlined that the proposed site of UAL’s proposed factory in Vaishali is in non-conformity with the BSPCB’s Guidelines which are admittedly consistent with pre-existing Guidelines of August 1985 and even the proposed Draft Guidelines, 1999.      

But instead of suggesting another site for the proposed asbestos factory, BSPCB should have referred to the Vision Statement on Environment and Health of Union Ministry of Environment & Forests which reads: "Alternatives to asbestos may be used to the extent possible and use of asbestos may be phased out." The fact that CPCB has pretended ignorance about it shows that it is extending unwarranted favoritism to the proposed asbestos factory in question to the detriment of public health. The grant of Environmental Clearance to the factory is inconsistent with the Vision Statement of the MoEF. BSPCB should adopt and adhere to the Vision Statement on Environment and Health of Union Ministry of Environment & Forests unlike CPCB.

In a controversial and unprecedented move the recommendation of CPCB is according primacy to the Environment Impact Assessment (EIA) report prepared for the Utkal asbestos company over the legally mandatory Guidelines of Bihar State Pollution Control Board (BSPCB) despite endorsing the same in its report which is ridden with falsehoods.

If asbestos cannot be safely dealt with in more than 50 other countries, many but not all of which are industrially advanced countries, that have banned it despite all Acts/Rules, it is a fantasy to assume it would be done in Bihar with weak or non-existent environmental and occupational health infrastructure.

CPCB’s report has failed to address the concerns of “secondary exposure” faced by the villagers which may go on continuously every day and night, also underlined in paragraph 14 of judgement of the Hon’ble Supreme Court. It is clear that the Hon’ble Court considers paragraph 15 and 16 of the judgement of January 21, 2011 by the Hon’ble Supreme Court in the Writ Petition (Civil) no. 260/2004 to be the relevant portion. The order of Hon’ble Patna High Court dated November 15, 2011 annexed at page 24 in the petitioner’s application referred to paragraph 15 of Hon’ble Supreme Court in its judgment dated January 21, 2011. Hon’ble High Court in its order at paragraph 12 categorically states, “Asbestos producing industry is considered to be hazardous industry as indicated in paragraph 15 of the judgement of the Supreme Court”. It is immensely important to read paragraph 14 of the Hon’ble Supreme Court’s order which reads as under:
                       “14. In the matter relating to secondary exposure of workers to asbestos, though the grounds have been taken in the Writ Petition without any factual basis, again in the Rejoinder filed to the counter affidavit of respondent No.37, this issue has been raised by the petitioner in detail. In the earlier judgment of this Court in the case of Consumer Education and Research Centre (supra), hazards arising out of primary use of asbestos were primarily dealt with, but certainly secondary exposure also needs to be examined by the Court. In that judgment, the Court had noticed that it would, thus, be clear that diseases occurred wherever the exposure to the toxic or carcinogenic agent occurs, regardless of the country, type of industry, job title, job assignment or location of exposure. The diseases will follow the trail of the exposure and extend the chain of the carcinogenic risk beyond the work place. In that judgment, the Court had also directed that a review by the Union and the States shall be made after every ten years and also as and when the ILO gives directions in this behalf consistent with its recommendations or conventions. Admittedly, 15 years has expired since the issuance of the directions by this Court. The ILO also made certain specific directions vide its resolution of 2006 adopted in the 95th session of the International Labour Conference. It introduced a ban on all mining, manufacture, recycling and use of all forms of asbestos. As already noticed, serious doubts have been raised as to whether `controlled use' can be effectively implemented even with regard to secondary exposure. These are circumstances which fully require the concerned quarters/authorities in the Government of India as well as the State Governments to examine/review the matter in accordance with law, objectively, to achieve the greater health care of the poor strata of the country who are directly or indirectly engaged in mining or manufacturing activities of asbestos and/or allied products.”

It is noteworthy that both the Chief Justice bench Hon’ble Supreme Court and Chief Justice bench of Hon’ble Patna High Court have taken note of the resolution of WHO and ILO which seek elimination of all forms of asbestos. The Hon’ble Supreme Court in its judgment dated January 21, 2011 in Writ Petition (Civil) No.260 of 2004 referred to its directions of January 27, 1995 in the Writ Petition (Civil) No. 206 of 1986 that are required to be strictly adhered to including fresh International Labour Organisation (ILO) resolution on Asbestos of 2006.

It may be noted that at Chapter 4, page no.4-14, the EIA report prepared by Shiva Test House, Patna for UAL Industries Limited, it is admitted that “The favorable wind and the proposed height of stack will disperse these pollutants in different directions fast to longer distance…” Given the fact that the study is admittedly limited to “project Premises”, the impact for habitation beyond the “project premises” and at “longer distance” has not been undertaken.

While a wind which disperses asbestos fibers to longer distances cannot be deemed “favourable wind”. This admission is a sufficient proof that the proposed asbestos factory is not safe even forhabitations at longer distances. The inference that at longer distance in different directions the concentration of asbestos fibers, the pollutants will be “negligible” is highly questionable and is without any basis.  It is quite inexplicable as to how this unreliable and speculative prediction of a short term GLC by a private consultant is being cited by the Committee of CPCB to mislead the Hon’ble Court that the pre-existing Guidelines should be ignored in favour this questionable EIA report. 

There is documentary evidence to show how MoEF and CPCB is fiddling with pre-existing rules, regulations, norms and guidelines to favour asbestos industry at any human cost. It is evident from the documents on record that the EIA report prepared for the UAL Industries by the Shiva Test House, Patna, a private consultant for submitting the application before BSPCB, EAC, MoEF. How can that become the criteria for determining the maximum ground level concentration (MGLC). It is admitted in the documents on the record that EAC, MoEF recommended 500 meter distance criteria for the proposed asbestos based factory.

Unlike MoEF and BSPCB, in compliance of the Hon’ble Supreme Court’s judgement of January 21, 2011, on January 23, 2012, Union Ministry of Labour has set up a Advisory Committee to implement Hon’ble Supreme Court order issued 15 years ago on January 27, 1995 since ILO has also made certain specific directions vide its Resolution of 2006 introducing a ban on all mining, manufacture, recycling and use of all forms of asbestos.  Hon’ble Supreme Court directed, “In terms of the above judgment of this Court as well as reasons stated in this judgment, we hereby direct the Union of India and the States to review safeguards in relation to primary as well as secondary exposure to asbestos keeping in mind the information supplied by the respective States in furtherance to the earlier judgment as well as the fresh resolution passed by the ILO. Upon such review, further directions, consistent with law, shall be issued within a period of six months from the date of passing of this order.”

It is evident from the direction that Central and State Governments were supposed to review and revise their laws in the light of “fresh resolution passed by ILO” introducing a ban on all mining, manufacture, recycling and use of all forms of asbestos within six months from January 21, 2011 but despite the passage of more than more than 3 years and eight months, they have not complied with the judgement of the Hon’ble Supreme Court.

In its written order, the High Court may consider directing BSPCB and MoEF to set up a Committee to incorporate Supreme Court’s order on ILO Resolution on asbestos the way Union Ministry of Labour has done.

It is reliably learnt that those respondents in the case whose submissions and arguments have not been heard are likely to seek high level corruption probe in the matter.  
For Details: Abhimanyu Sharma, lawyer for Vaishali villagers, Mb: 9631290074
Gopal Krishna, ToxicsWatch Alliance (TWA), Mb: 09818089660 (Delhi), 08227816731 (Patna), E-mail:”gopalkrishna1715@gmail.com, Web:www.toxicswatch.org
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