“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),
[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
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