ToxicsWatch Alliance ()TWA has been wondering whether or not it is an effort by the asbestos industry (other industries esp chemical may also be involved) to remove the First Schedule from the Act so that it does remain designated as hazardous industry. This fact was stressed by TWA in India in numerous communications when Indian delegation at the last COP of Rotterdam Convention insisted that chrysotile asbestos is not a hazardous substance despite the fact that it was so under the domestic law-Factories Act, 1948. TWA had repeatedly embarrassed the officials who were involved in taking such a stance. They were so defensive that environment ministry blamed chemical ministry for the mistake which had cited a manifestly irrelevant study of National Institute of Occupational Health, Ahmedabad to take such indefensible position.
The existing provision in clause 2(cb) of Factories Act, 1948 provides that “hazardous process” means 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 or connected therewith, or (ii) result in the pollution of the general environment: Provided that the State Government may, by notification in the Official Gazette, amend the First Schedule by way of addition, omission or variation, any industry specified in the said Schedule.
The proposed amendment provides that the existing section 2(cb) shall be substituted by the following, namely - (cb) ―hazardous process‖ means any process where, unless special care is taken, raw materials, hazardous substances used therein or the intermediate or finished products, bye products, wastes or effluents thereof would - (A) cause material impairment to the health of the persons engaged in or connected therewith; or (B) result in the pollution of the general environment.
The official reason for the proposed amendment is that the term ―hazardous process has to be redefined as a process in which a hazardous substance is used. The present definition of ̳hazardous process industry‘ links it with the First Schedule under the Factories Act owing to the notation to the effect that ―hazardous process means any process or activity in relation to a industry specified in the First Schedule. The issues relating to the restrictive scope of the first Schedule and some of the hazardous process activities being left out of the First Schedule, have been discussed at length in various Conferences namely, the 40th , 41st and 42nd conference of Chief Inspectors of Factories. On further examination of the issues involved under this sub - section, and in the light of frequent references from the factories, directly to Directorate General in regard to considering their process as ̳hazardous process, it is considered not essential to retain the First Schedule. Since the term ‘hazardous substance’ is also proposed to be defined as per the Environment (Protection) Act by introducing a new sub - section 2(cc). With this amendment, the hazardous process will be identified by use of hazardous substance which will be duly notified from time to time under new clause 2(cc). In view of t he above, the First Schedule is deleted. Further, the words ̳as prescribed by Central or State Government in the Rules have been added in view of the comments of various Ministries and Departments of Government of India. This has been done to bring in more clarity based on the comments received by Central Ministries of Government of India.
The First Schedule that specifically mentions " Manufacture, handling and processing of asbestos and its products" at serial no. 24 is proposed to be removed is as under:
THE FIRST SCHEDULE
[See section 2 (cb)]
List of Industries involving hazardous processes
1. Ferrous Metallurgical Industries
-Integrated Iron and Steel
-Ferrow-alloys
-Special Steels
2. Non-ferrous metallurgical Industries
-Primary Metallurgical Industries, namely, zinc, lead, copper, manganese and aluminium
3. Foundries (ferrous and non-ferrous)
-Castings and forgings including cleaning or smoothening/roughening by sand and shot blasting
4. Coal (including coke) industries
-Coal, Lignite, Coke, etc.
-Fuel Gases (including Coal Gas, Producer Gas, Water Gas)
5. Power Generating Industries
6. Pulp and paper (including paper products) industries
7. Fertiliser Industries
-Nitrogenous
-Phosphatic
-Mixed
8. Cement Industries
-Portland Cement (including slag cement, puzzolona cement and their products)
9. Petroleum Industries
-Oil Refining
-Lubricating Oils and Greases
10. Petro-chemical Industries
11. Drugs and Pharmaceutical Industries
-Narcotics, Drugs and Pharmaceuticals
12. Fermentation Industries (Distilleries and Breweries)
13. Rubber (Synthetic) Industries
14. Paints and Pigment Industries
15. Leather Tanning Industries
16. Electro-plating Industries
17. Chemical Industries
-Coke Oven by-products and Coaltar Distillation products
-Industrial Gases (nitrogen, oxygen, acetylene, argon, carbon, dioxide, hydrogen, sulphur dioxide, nitrous oxide, halogenated hydrocarbon, ozone, etc.)
-Industrial Carbon
-Alkalies and Acids
-Chromates and dichromates
-Leads and its compounds
-Electrochemicals (metallic sodium, potassium and magnesium, chlorates, perchlorates and peroxides)
-Electrothemal produces (artificial abrasive, calcium carbide)
-Nitrogenous compounds (cyanides, cyanamides and other nitrogenous compounds)
-Phosphorous and its compounds
-Halogens and Halogenated compounds (Chlorine, Fluorine, Bromine and Iodine)
-Explosives (including industrial explosives and detonators and fuses)
18. Insecticides, Fungicides, Herbieides and other Pesticides Industries
19. Synthetic Resin and plastics
20. Man made Fibre (Cellulosic and non-cellulosic) Industry
21. Manufacture and repair of electrical accumulators
22. Glass and Ceramics
23. Grinding or glazing of metals
24. Manufacture, handling and processing of asbestos and its products
25. Extraction of oils and facts from vcgetable and animal sources
26. Manufacture, handling and use of henzene and substances containing benzene
27. Manufacturing processes and operations involving carbon disulphide
28. Deys and Dyestuff including their intermediates
29. Highlv fiammable liauids and gases
After Bhopal a new chapter was inserted in the Factories Act, 1948 in 1987. The chapter is as under:
CHAPTER IVA.- Provisions relating to Hazardous Processes
Section 41A. Constitution of Site Appraisal Committees. -
(1) The State Government may, for purposes of advising it to consider applications for grant of permission for the initial location of a factory involving a hazardous process or for the expansion of any such factory, appoint a Site Appraisal Committee consisting of-
(a) the Chief Inspector of the State who shall be its Chairman;
(b) a representative of the Central Board for the Prevention and Control of Water Pollution appointed by the Central Government under section 3 of the Water (Prevention and Control of Pollution) Act, 1974 (6 of 1974) ;
(c) a representative of the Central Board for the Prevention and Control of Air Pollution referred to in section 3 of the Air (Prevention and Control of Pollution) Act, 1981 (14 of 1981);
(d) a representative of the State Board appointed under section 4 of the Water (Prevention and Control of Pollution) Act, 1974 (6 of 1974);
(e) a representative of the State Board for the Prevention and Control of Air Pollution referred to in section 5 of the Air (Prevention and Control of Pollution) Act, 1981 (14 of 1981);
(f) a representative of the Department of Environment in the State;
(g) a representative of the Meteorological Department of the Government of India;
(h) an expert in the field of occupational health; and
(i) a representative of the Town Planning Department of the State Government,
and not more than five other members who may be co-opted by the State Government who shall be- ,
(i) a scientist having specialised knowledge of the hazardous process which will be involved in the factory,
(ii) a representative of the local authority within whose jurisdiction the factory is to be established, and
(iii) not more than three other persons as deemed fit by the State Government
(2) The Site Appraisal Committee shall examine an application for the establishment of a factory involving hazardous process and make its recommendation to the State Government within a period of ninety days of the receipt of such application in the prescribed form.
(3) Where any process relates to a factory owned or controlled by the Central Government or to a corporation or a company owned or controlled by the Central Government, the State Government shall co-opt in the Site Appraisal Committee a representative nominated by the Central Government as a member of that Committee.
(4) The Site Appraisal Committee shall have power to call for any information from the person making an application for the establishment or expansion of a factory involving a hazardous process.
(5) Where the State Government has granted approval to an application for the establishment of expansion of a factory involving a hazardous process, it shall not be necessary for an applicant to obtain a further approval from the Central Board or the State Board established under the Water (Prevention and Control of Pollution) Act, l974 (6 of 1974) and the Air (Prevention and Control of Pollution) Act, 1981 {14 of 1981).
Section 41B. Compulsory disclosure of information by the occupier.-
(1) The occupier of every factory involving a hazardous process shall disclose in the manner prescribed, all informations regarding dangers including health hazards and the measures to overcome such hazards arising from the exposure to or handling of the materials or substances in the manufacture, transportation, storage and other processes, to the workers employed in the factory, the Chief Inspector, the local authority, within whose jurisdiction the factory is situate, and the general public in the vicinity.
(2) The occupier shall, at the time of registering the factory involving a hazardous process lay down a detailed policy with respect to the health and safety of the workers employed therein and intimate such policy to the Chief Inspector and the local authority and, thereafter, at such intervals as may be prescribed, inform the Chief Inspector and the local authority of any change made in the said policy.
(3) The information furnished under sub-section (1) shall include accurate information as to the quantity, specifications and other characteristics of wastes and the manner of their disposal.
(4) Every occupier shall, with the approval of the Chief Inspector, draw up an on-site emergency plan and detailed disaster control measures for his factory and make known to the workers employed therein and to the general public living in the vicinity of the factory, the safety measures required to be taken in the event of an accident taking place.
(5) Every occupier of a factory shall,-
(a) if such factory engaged in a hazardous process on the commencement of the Factories (Amendment) Act, 1987 within a period of thirty days of such commencement; and
(b) if such factory purposes to engage in a hazardous process at any time after such commencement, within a period of thirty days before the commencement of such process,
inform the Chief Inspector of the nature and details of the process in such form and in such manner as may be prescribed.
(6) Where any occupier of a factory contravenes the provisions of sub-section (5), the license issued under section 6 to such factory shall, notwithstanding any penalty to which the occupier of the factory shall be subjected to under the provisions of this Act, be liable for cancellation.
(7) The occupier of a factory involving a hazardous process shall, with the previous approval of the Chief Inspector, lay down measures for the handling usage, transportation and storage of hazardous substances inside the factory premises and the disposal of such substances outside the factory premises and publicise them in the manner prescribed among the workers and the general public living in the vicinity.
Section 41C. Specific responsibility of the occupier in relation to hazardous processes.-
Every occupier of a factory involving any hazardous process shall-
(a) maintain accurate and up-to-date health records or, as the case may be, medical records, of the workers in the factory who are exposed to any chemical, toxic or any other harmful substances which are manufactured, stored, handled or transported and such records shall be accessible to the workers subject to such conditions as may be prescribed;
(b) appoint persons who possess qualifications and experience in handling hazardous substances and are competent to supervise such handling within the factory and to provide at the working place all the necessary facilities for protecting the workers in the manner prescribed:
Provided that where any question arises as to the qualifications and experience of a person so appointed, the decision of the Chief Inspector shall be final;
(c) provide for medical examination of every worker-
(i) before such worker is assigned to a job involving the handling of, or working with, a hazardous substance, and
(ii) while continuing in such job, and after he has ceased to work in such job, at intervals not exceeding twelve months in such manner as may be prescribed,
Section 41D. Power of Central Government to appoint Inquiry Committee.-
(1) The Central Government may, in the event of the occurrence of an extraordinary situation involving a factory engaged in a hazardous process, appoint an Inquiry Committee to inquire into the standards of health and safety observed in the factory with a view to finding out the causes of any failure or neglect in the adoption of ally measures or standards prescribed for the health and safety of the workers employed in the factory or the general public affected, or likely to be affected, due to such failure or neglect and for the prevention and recurrence of such extraordinary situations in future in such factory or elsewhere.
(2) The Committee appointed under sub-section (1) shall consist of a Chairman and two other members and the terms of reference of the Committee and the tenure of office of its members shall be such as may be determined by the Central Government according to the requirements of the situation.
(3) The recommendations of the Committee shall be advisory in nature.
Section 41E. Emergency standards.-
(1) Where the Central Government is satisfied that no standards of safety have been prescribed in respect of a hazardous process or class of hazardous processes, or where the standards so prescribed are inadequate, it may direct the Director-General of Factory Advice Service and Labour Institutes or any Institution specialised in matters relating to standards of safety in hazardous processes, to lay down emergency standards for enforcement of suitable standards in respect of such hazardous processes.
(2) The emergency standards laid down under sub-section (1) shall, until they are incorporated in the rules made under this Act, be enforceable and have the same effect as if they had been incorporated in the rules made under this Act.
Section 41F. Permissible limits of exposure of chemical and toxic substances.-
(1) The maximum permissible threshold limits of exposure of chemical and toxic substances in manufacturing processes (whether hazardous or otherwise) in any factory shall be of the value indicated in the Second Schedule.
(2) The Central Government may, at any time, for the purpose of giving effect to any scientific proof obtained from specialised institutions or experts in the field, by notification in the Official Gazette, make suitable changes in the said Schedule.
Section 41G. Workers' participation in safety management.-
(1) The occupier shall, in every factory where a hazardous process takes place, or where hazardous substances are used or handled, set up a Safety Committee consisting of equal number of representatives of workers and management to promote co-operation between the workers and the management in maintaining proper safety and health at work and to review periodically the measures taken in that behalf.
Provided that the State Government may, by order in writing and for reasons to be recorded, exempt the occupier of any factory or class of factories from setting up such Committee.
(2) The composition of the Safety Committee, the tenure of office of its members and their rights and duties shall be such as may be prescribed.
Section 41H. Right of workers to warn about imminent danger.-
(1) Where the workers employed in any factory engaged in a hazardous process have reasonable apprehension that there is a likelihood of imminent danger to their lives or health due to any accident, they may, bring the same to the notice of the occupier, agent, manager or any other person who is in-charge of the factory or the process concerned directly or through their representatives in the Safety Committee and simultaneously bring the same to the notice of the Inspector.
(2) Tt shall be the duty of such occupier, agent, manager or the person in-charge of the factory or process to take immediate remedial action if he is satisfied about the existence of such imminent danger and send a report forth-with of the action taken to the nearest Inspector.
(3) If the occupier, agent, manager or the person in-charge referred to in sub-section (2) is not satisfied about the existence of any imminent danger as apprehended by the workers, he shall, nevertheless, refer the matter forth-with to the nearest Inspector whose decision on the question of the existence of such imminent danger shall be final.
NOTES.- New Chapter IVA inserted in the Act.- The Factories (Amendment) Act, 1987, has inserted this new chapter in the Act after Chapter IV.
The new Chapter lays down provisions relating to hazardous process in sections 41A to 41H.
Under provisions of section 41A of this Chapter the State Government in empowered to form a Site Appraisal Committee to examine the application for establishment of a factory involving hazardous process and send its recommendations to the State Government. The chairman and members of the Committee will be persons as specified in the section. Powers of the Committee are also specified. The proposal for establishment or expansion of such a factory, if approved by the State Government, has to be further approved by the authorities mentioned in the section. Duties and responsibilities of the occupier of such a factory have been specified in sections 41B and 41C.
Section 41D empowers the Central Government to appoint Inquiry Committee to enquire whether such a factory is observing the standards of health and safety of workers as well as of the general public as prescribed and make recommendations. Its recommendations shall be however of advisory nature The Committee shall have a chairman and two members. The Central Government shall determine the tenure of office of the members.
Section 41E empowers the Central Government to take certain steps for laying down emergency standards and enforcement thereof in case no standard of safety has been prescribed for hazardous processes.
Section 41F enjoins that the maximum permissible limits of exposure of chemical and toxic substances in manufacturing processes (whether hazardous or otherwise) in any factory shall be of the value indicated in the Second Schedule. The section empowers the Central Government to make suitable changes in the said Schedule by notification in the Official Gazette.
Section 41G requires the occupier of a factory in which a hazardous process takes place to set up a Safety Committee with equal number of representatives of workers for the purpose of enforcing the safety measures in the factory. The State Government may, however, exempt any factory for reasons to be recorded in writing, any factory from setting up such a Committee.
Section 41H gives the right to workers of a factory in which a hazardous process takes place to bring to the notice of the occupier, agent, manager or any other person who is in-charge of the factory or the Inspector of the area, of their apprehension about any imminent danger and the person or persons informed must enquire immediately on receipt of the information and take remedial action.
Occupations Declared Dangerous Under Section 87 of the Factories Act, 1948
(a) Manufacture of aerated water and processes incidental thereto.
(b) Electrolytic plating or Oxidation of metal by use of an Electrolytic containing chromic acid orother chromium compounds.
(c) Manufacture and repair of electric accumulators.
(d) Glass manufacture.
(e) Grinding and treatment of lead grinding and glazing of metal.
(f) Manufacture and treatment of lead and certain compounds of lead.
(g) Generating gas from dangerous petroleum.
(h) Cleaning or smoothing of articles by a jet of sand, metal shot or grid or other abressive propalledby a blast of compressed or a steam.
(i) Liming and tanning of rawhides sand skins and process incidental thereto.
(j) Manufacture of Pottery and ceremics.
(k) Carrying on a certain processes of lead and lead material in printing presses and type foundaries.
(l) Chemical Works.
(m) Manufacture of articles from refractory materials.
(n) Handling and processing of asbestos from manufacture of any article of asbestos and process of manufacture or otherwise in which asbestos is used, in any form.
(o) Handling and manipulation of corrosive substances.
(p) Compression of oxygen and hydrogen produced by the Electrolysis of water.
(q) Process of extracting of oil and facts from extraction plants.
(r) Manufacture of manipulation of maganese and its compounds.
(s) Manufacture of manipulation of dangerous pesticides.
(t) Manufacture, handing and use of benzene and substances containing benzene.
(u) Manufacturing process or operation in carbon-disulphide plants.
(v) Manufacture and manipulation of carcenegnic dye intermediates.
(w) Operation involving compresses gases.
(x) Highly flammable compressed gases.
(y) Operations in foundaries.
(z) Manipulation of stone or any other material containing free silica.
Asbestos as hazardous industry
Government of Gujarat has brought all workers exposed to Silica and Asbestos under legal protection by making Schedules XVII and XVIII of Rule 102 applicable to the units employing even one worker in November 2008. According to information provided by Employee State Insurance Corporation (ESIC) in 2010 there were 36 cases of asbestosis in Maharashtra and 10 cases of asbestosis in West Bengal. Both these did not disclose it to National Human Rights Commission (NHRC), which is looking into the matter of asbestos related deaths on complaint from TWA.
Occupational Health and Safety Centre, Mumbai examined 473 past workers of a asbestos based textile factory. They found that out of 473 some 133 were suffering from asbestos related diseases. Some 97 workers out of these 133 were compensated by Turner & Newall Trust in an out of court settlement. The compensation amount was pea nuts. By 1920, Turner & Newall Company knew very much aware that the loss of about one third of its workforce was due to the inhalation of certain dust classified as asbestos, yet it failed to disclose this to its workforce.This demonstrated that the Company placed profits above humanity. it was very dangerous and hazardous to human body. Irrespective of these dangers it maintained the policy of “Secrecy” and ignored all other important issues relating to humanity, such as “Duties of Care, Distributive Justice, Informed Consent and Corporate responsibility.” By 1980, the company's profit was more than £300 million, and the profit making continued until 1980. Up to 16% profit was returned to its shareholders in some years, yet they continued to deny their employees their right to “Health and Safety” environment. Till 1993, UK-based M/s Turner & Newall were one of the major
share-holders in Hindustan Composites Ltd, which made brake liners and
clutch facings. Turner & Newall wound up operations and a trust fund to settle claims for asbestosis from all over the world. These 97 Mumbai workers who got a compensation of over Rs 3 crore were employed with Hindustan Composites Ltd. Each of them will receive between Rs 1.5 lakh and Rs 8 lakh, depending on the severity of the disease.
TWA feels that in such a situation, nothing short of exemplary punishment under criminal law and imposition of huge cost would be and should be deemed adequate. The lawyers and organisations who were involved in this settlement seem to have acted like the judges of the Supreme Court who agreed for $ 470 million compensation for the victims of Bhopal. There was a demand for impeachment of these judges both within and outside the parliament.
Occupational Health and Safety Association, Ahmedabad found 87 workers and 3 citizens suffering from asbestos related diseases. Civil Hospital, Ahmedabad has reported cases of pleural plaques.
Some 107 cases of Mesothelioma were reported in Tata Memorial Hospital, Mumbai between the period 1985-2007.
In a related development All other types of Pneumoconiosis excluding coal workers’ pneumoconiosis, Silicosis and Asbestosis have been included in the list of Notifiable Diseases under Section 25 of the Mines Act, 1952 since February 2011. TWA has been critical of organisations who enter into out of court settlements for asbestos related diseases.
As to the proposal to remove the First Schedule of the Factories Act, 1948 in the proposed Bill, there are several situations dwelt in chemistry wherein a process can be hazardous process even when it does not use hazardous substances. Official reasoning for removal of the First Schedule does not appear sound.
TWA urges the new Labour Minister to retain the First Schedule to dispel the impression of the ministry caving in to the undue influence of the industry.
As to the proposal to remove the First Schedule of the Factories Act, 1948 in the proposed Bill, there are several situations dwelt in chemistry wherein a process can be hazardous process even when it does not use hazardous substances. Official reasoning for removal of the First Schedule does not appear sound.
TWA urges the new Labour Minister to retain the First Schedule to dispel the impression of the ministry caving in to the undue influence of the industry.
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