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“WHOLE ASBESTOS PLANT IS SOURCE OF ASBESTOS POLLUTION”: Dr Barry Castleman

Written By Gopal Krishna on Saturday, October 26, 2013 | 8:03 AM

“WHOLE ASBESTOS PLANT IS SOURCE OF ASBESTOS POLLUTION”: Dr Barry Castleman

Ignoring epidemic of asbestos-related diseases & deaths & its own Vision Statement on Environmental Health, Central Pollution Control Board supports proposed hazardous asbestos factory

CPCB Committee’s report on proposed hazardous asbestos factory, a bundle of misstatement of facts
October 26, 2013: Ignoring epidemic of asbestos-related diseases & deaths and its own Vision Statement on Environmental Health, Union Ministry of Environment & Forests (MoEF)’s Central Pollution Control Board (CPCB) Committee has recommended setting of asbestos factory in Vaishali, Bihar. It 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. High Court has fixed the matter for hearing on October 28 as per its order dated October 7, 2013.  

The CPCB Committee’s report is incomplete without referring 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."[1] The fact that the Committee of CPCB 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.  

In a controversial and unprecedented move the recommendation of CPCB’s committee 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. d ridden with falsehoods.

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.”[2]

It is noteworthy that both the Hon’ble Supreme Court and 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.

Hon’ble Supreme Court’s judgement of January 27, 1995 in the Writ Petition (Civil) No. 206 of 1986, refers to and cites a book Asbestos Medical and Legal Aspects authored by Barry I. Castleman at paragraph 18.[3]

In a communication dated October 23, 2013 sent to ToxicsWatch Alliance (TWA), Barry I. Castleman who has been cited in the Supreme Court’s judgement states, "GENERALLY -- THE  COMPANY SEEMS TO BE TRYING TO ARGUE THAT THERE IS JUST ONE POINT SOURCE OF ASBESTOS AIR POLLUTION AT THE DUST COLLECTOR, WHEN IN FACT THE WHOLE PLANT IS AN AREA SOURCE OF ASBESTOS AIR POLLUTION.  THERE CAN BE EMISSIONS FROM RECEIVING AND STORING ASBESTOS FIBRE, FROM PROCESSING INVOLVING MOVEMENT AND MIXING OF FIBRE AND CUTTING OF A-C PRODUCTS, FROM STACKING AND SHIPPING THESE PRODUCTS, AND FROM REMOVAL OF WASTES INCLUDING UNSATISFACTORY AND BROKEN A-C PRODUCT STOCKS.” Dr Castleman has expressed his willingness to assist the Patna High Court on a pro bon basis in public interest.  

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 mentions “Resultant Concentration after Commissioning of the Project” in paragraph 4.10.1 states “The resultant concentration after the commissioning of the project on the GLC of PM10 as predicted and super imposing the predicted values on the on the maximum baseline concentration is recorded during the study period respective to the direction and distance of the monitoring location. PM10 is a measurement unit for particulate matter of dust present in the air. It means particulate matter with a diameter less than or equal to 10 micrometer. The cumulative ground level concentration (baseline + increment) after commissioning of the proposed project is mentioned in Table 4.4.” The table is titled “Maximum Cumulative Short Term Ground Level Concentration” which states that maximum incremental concentration of PM10 due to proposed project refers to 196. 96 meter & 34.73 meter. This section of the EIA report concludes, “Hence it can be concluded that the impact on Air Quality due to proposed Project will be negligible. The environment around the proposed site has enough buffer to assimilate these insignificant values. The favorable wind and the proposed height of stack will disperse these pollutants in different directions fast to longer distance with negligible concentrations.” 
Thus 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 for habitations 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.
The conditional Environmental Clearance (EC) granted through letter dated February 23, 2012 of Dr P L Ahujarai, Scientist ‘F’, Impact Assessment (I.A.) Division, Union Ministry of Environment and Forests (MoEF), Government of India  addressed to the Managing Director, M/s UAL – BIHAR (A Unit of UAL Industries Ltd.), Kolkata” as per F. No. J-11011/343/2010-IA-II (I). The EC letter states at Paragraph 8 that “Based on the information submitted by you, presentation made by you and consultant, M/s Shiva Test House, Patna, the Ministry of Environment and Forests hereby accords environmental clearance to the above project under the provisions of EIA Notification dated 14th September 2006 subject to strict compliance” of the “Specific and General conditions”. Paragraph 8 (B) (i) provides the General Conditions stating, “The project authorities must strictly adhere to the stipulations made by the Bihar Pollution Control Board and the State Government.”
Admittedly EC was given “subject to stipulation of environmental safeguards”. The case of UAL Industries Limited is solely about whether BSPCB has the authority to cancel the Consent-to-Establish cum No Objection Certificate. The EC’s General Conditions reveal that BSPCB is fully competent, authorized and duty bound to act in compliance with the EC’s ‘General Conditions’.    
EC letter states, “The Asbestos Cement Plants have been listed at Sl. No. 4(c) of Schedule of EIA Notification, 2006 as Category ‘A’ and appraised by the Expert Appraisal Committee-1 (Industry) in the Ministry.” It is noteworthy that Under the Schedule which is referred in paragraph 2 and 7 of the EIA Notification, 2006 provides list of projects or activities requiring prior environmental clearance refers to asbestos milling and asbestos based products at SI. No. 4 (c).
Appendix III mentioned in the paragraph 7 of EIA Notification, 2006 provides generic structure of environmental impact assessment document and deals with the anticipated environmental impacts and mitigation measures states that the commitments the company makes to the regulatory agencies like BSPCB are “Irreversible and Irretrievable commitments of environmental components.” 
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, 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.  Union Ministry of Labour’s Advisory Committee has not submitted its report although more than one year and nine months has passed since it was constituted and more than 3 years and eight months have passed since judgement. 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.

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 Committee’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.  
In a significant development, even as Dow Chemicals Company continues to deny its liability for Bhopal Gas Tragedy, it has set aside $2.2 billion in compensation fund to address future asbestos-related liabilities arising out of acquisition of Union Carbide Corporation (in 1999) and its liabilities in the USA from operating a asbestos mine from 1963. It is high time Indian companies were made announce their compensation funds for the victims of incurable asbestos related diseases. High Court apprehended recurrence of Bhopal Gas Tragedy in its order dated August 19, 2013 in this very case. 
It is relevant to recall that an Italian court in Turin has convicted a Swiss tycoon and a Belgian baron of negligence over some 2,200 asbestos-related deaths. Stephan Schidheiny and Jean-Louis de Cartier each got 16 years in prison. Eternit closed its operations in Italy in 1986 - six years before asbestos was banned in the country.[4] All eyes from India and across the globe will be on the verdict of the Patna High Court when it hears the matter on October 28. The Court may consider directing the MoEF to set up a Committee to incorporate Supreme Court’s order on ILO Resolution on asbestos the way Union Ministry has done.   

For Details: Dr Barry Castleman, Author, Asbestos: Medical and Legal Aspects, USA
Tel: 301 933 9097, Email: barry.castleman@gmail.com
Gopal Krishna, ToxicsWatch Alliance (TWA), Mb: 09818089660 (Delhi), 08227816731 (Patna),
E-mail:”gopalkrishna1715@gmail.com, Web:www.toxicswatch.org



[1] Page no. 12, Vision Statement on Environment and Health, Union Ministry of Environment & Forests, http://moef.nic.in/divisions/cpoll/envhealth/visenvhealth.pdf
[2] Paragraph 14, judgement, three judge bench headed by Chief Justice, Supreme Court, January 21, 2011, authored by Justice Swatanter Kumar currently Chairman, National Green Tribunal
[3] Supreme Court’s judgement, Writ Petition (Civil) No. 206 of 1986, January 27, 1995
[4] BBC News, Europe, 13 February 2012, http://www.bbc.co.uk/news/world-europe-17016110?print=true
For Details: Dr Barry Castleman, Author, Asbestos: Medical and Legal Aspects, USA Tel: 301 933 9097, Email: barry.castleman@gmail.com Gopal Krishna, ToxicsWatch Alliance (TWA), Mb: 09818089660 (Delhi), 08227816731 (Patna), E-mail:”gopalkrishna1715@gmail.com, Web:www.toxicswatch.org
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