Tamil Nadu’s Nibhi asbestos company’s case against Bihar State Pollution
Control Board (BSPCB), Bihar Industrial Area Development Authority (BIADA) and
Bihar Government is listed for order before Justice Shivaji Pandey’s bench of
Patna High Court after cancellation of permission of the carcinogenic asbestos
based hazardous factory by Pollution Control Board. The matter is listed for
order on August 21, 2017. The
asbestos company has filed the case against State of Bihar, Department of
Industries, Govt. of Bihar and Bihar Industries Development Authority (BIADA).
In
its counter affidavit, Pollution Control Board has submitted that the factory
has undermined the status of Bihar as an air pollution control area under
Section 19 of Air (Prevention & Control of Pollution) Act, 1981. The
factory has also violated Section 21 of the Act which forbids establishment and
operations of such factory without the consent of the Pollution Control Board.
It has submitted that the factory was closed from November 2013.
From
the submission of the Pollution Control Board, it is clear that the High Court
is likely to dismiss the petition of the Nibhi asbestos company because it is
not maintainable because the company did not avail the alternative remedy
provided by Air (Prevention & Control of Pollution) Act, 1981 and National
Green Tribunal Act, 2010. It is evident that the company in question is guilty
of failure to comply with the provision of Section 21, Section 22 and Section
31 A under Section 37 of the Air (Prevention & Control of Pollution) Act,
1981. The power of the Board to order closure of polluting factories under
Section 31 A has been endorsed by the High Court in Bihar State Pollution
Control Board v Hiranand Stone Works (AIR 2005 Pat 62). It has been held in
Krishna Gopal v State of Uttar Pradesh (1986 Cr LR 11 MP) that the order of
removal of a polluting factory which causes emission detrimental to the
physical comfort and health of public at large is valid.
Section
37 of the Air (Prevention & Control of Pollution) Act, 1981 provides that
non-compliance with the directions of the Pollution Control Board will attract
penalties. Section 37 (1) reads: “Whoever fails to comply with the provisions
of Section 21 or Section 22 or directions issued under Section 31 A, shall in respect
of each such failure, be punishable with imprisonment for a term which shall
not be less than one year and six months but which may extend to six years and
with fine, and in case the failure continues, with an additional fine which may
extend to five thousand rupees for every day during which such failure
continues after the conviction for the first such failure.” Given the fact that
Nibhi company’s violations have continued for more than one year, its omissions
and commissions will attract the penalty envisaged under Section 37 (2). It
reads: “If the failure referred to in sub-section (1) continues beyond a period
of one year after the date of conviction, the offender shall be punishable with
imprisonment for a term which shall not be less than two years but which may
extend to seven years and with fine.”
In
such a backdrop, Nibhi asbestos company is seeking quashing of the cancellation
of consent by BSPSCB dated 21 July 2016 to operate its hazardous industrial
activity. It has also sought quashing of letter of Chairman, Pollution Control
Board dated 22 September 2016 ordering closure of the factory with immediate
effect.
The
illegal operations of Nibhi company’s factory was detected on 31 January 2016
on inspection by the Pollution Control Board.
In the inspection Pollution
Control Board found the following lapases:
1)
the waste asbestos was not
proeperly stored rather they were found scattered in the factory premises all
around;
2)
There was no facility for diposal
for solid waste;
3)
Facilities for
pulverization of asbestos was found lacking;
4)
Authorization
has not been obtained under Hazardous Waste (Management, Handling &
Transboundary Movement) Rules, 2008
The
failure of the Nibhi company to obtain authorization under Section 5 of Hazardous
Waste (Management, Handling & Transboundary Movement) Rules, 2008 is a
grave illegal and immoral offence because it has exposed the health of workers,
communities and the environment by its unpardonable act of omission and
commission. Under Section 25 of the
Hazardous Waste Rules, the company is liable for all the damages caused to the
environment, workers and to the communities due to improper handling of the
hazardous wastes or improper disposal of hazardous wastes. The company is
liable to pay financial penalties as levied by the Pollution Control Board for
its violations.
The company did not submit Form 1 seeking authorization under
the Rules. As a consequence it did not bother to maintain the record of
hazardous wastes handled by it in Form 3 and did not submit annual return in
Form 4 on or before the 30th of June of each financial year as per
the Rules. This resulted in a situation wherein Pollution Control Board could
not maintain the register containing particulars of the conditions imposed
under the rules for management of hazardous waste under Section 5 (9) of the
Rules. This provision also stipulates that any person interested or affected or
a person authorized by him can inspect this register during office hours. A
situation has arisen wherein workers and communities of Giddha panchayat and
adjoining areas of Koilwar block has been denied the opportunity to ascertain
the amount and quality of hazardous waste generated by Nibhi company and
correlate it with the human, occupational and environmental health
impacts.
The
Pollution Control Board’s affidavit states that besides this when Nibhi
asbestos company was issued show cause notice under Water (Prevention & Control of Pollution) Act,
1974 and Air (Prevention & Control of Pollution) Act, 1981, it chose not to
respond to it.
Not
only this when pursuant to a complaint of ToxicsWatch Alliance (TWA) to Union
Ministry of Environment & Forests
Government of India through its Regional Office at Ranchi, Bihar
Pollution Control Board re-inspected the factory, it was found that the factory
was in operation in disregard of the closure order from Pollution Control
Board. The non-compliance with Pollution Control Board’s order has inflicted
injury and caused damage to the environment, the counter affidavit of the Board
has submitted.
Pollution
Control Board warned Nibhi company by a letter dated 22 September 2016 stating
that if there will be non-compliance, a compliant will be filed against it
under Section 37 of the Air (Prevention & Control of Pollution) Act, 1981.
In
its affidavit, the Pollution Control Board has submitted that although the
company had the option of filing an appeal before the appellate authority
within 30 days of its order, instead of availing the alternative remedy, it has
chosen to file the case in the High Court. The company had the option of filing
an appeal in the National Green Tribunal if they had felt aggrieved by the
decision of the appellate authority of the Pollution Control Board.
Following
anti-asbestos movement campaign and taking note of the violation of
environmental laws by asbestos factories in Bhojpur, Bihar, BSPCB
cancelled the No Objection Certificate given to the asbestos factory units of
Tamil Nadu based Nibhi Industries Pvt Ltd. Despite such action this factory has
been operating with impunity. The matter was last heard on July 21, 2017. BSPCB
has filed its counter affidavit pursuant to Court’s order dated March 23, 2017.
It is puzzling as to why BIADA has been made a party in the case.
Notably,
BSPCB has revoked its emission-consent order and discharge consent order given
to Tamil Nadu based Nibhi Industries Pvt Ltd which was valid till 31st
March, 2018. Chairman, BSPCB has ordered, the company in question, Nibhi
Industries Pvt Ltd. to “close your industrial unit with immediate effect,
failing which complaints shall be filed u/ss. 44 of the Water (Prevention and
Control of Pollution) Act, 1974 and 37 of the Air (Prevention and Control of
Pollution) Act, 1981.” This land allotment was considered to be
part of the scam that led to an inquiry into allotments by Bihar Industrial
Area Development Authority (BIADA). In Bhojpur's Giddha village in Koilwar
block, the 100,000 MT Capacity Asbestos Fibre Cement Corrugated Sheet, Flat
Sheet, Accessories and Light Weight Fly Ash Block Plant acquired 15 acres. The
plant site is located adjacent to Ara-Koilwar road.
The
villagers have been complaining against the hazardous factories in their
proximity that manufacture chrysotile white asbestos-cement products. The
hazardous asbestos waste has been dumped indiscriminately in the adjoining
villages and the agricultural fields.
This
company misled the villagers by telling them that agro-based factories will be
set up. Initially, when they bought the land they did not disclose that it was
for asbestos based factories. When students of 10th and 12th
standard found that it was going to be hazardous factory, they pointed out that
as per their biology and chemistry text books asbestos causes incurable lung
diseases.
Given
the fact that No Objection Certificate of all the asbestos based factories in
Bihar has been cancelled by BSPCB, there is no legal basis for the continued
operations of this hazardous factory.
Notably,
questions were raised against these plants in Bihar Vidhan Sabha and Vidhan
Parishad. Abdul Bari Siddiqui, former Bihar Finance Minister had
raised the issue of hazardous asbestos factories in Vidhan Sabha. In another
significant observation Awadhesh Narain Singh as Chairperson, Bihar Legislative
Council (BLC) and former labour minister said, “buying asbestos is akin to
buying cancer” and “pain of asbestos related diseases is worse than the pain of
unemployment.” The speech is available at http://www.youtube.com/watch?v=B9TbemRUkYM. He noted that his own B-Ed College affiliated to Aryabhat
University faces threat from this hazardous factory as it is located exactly
behind it. In fact boundary walls alone create two sites wherein at one site a
hazardous and cancer causing factory operations are happening illegally and
illegitimately and on other site education activities are happening threatening
health of teachers and the staff of the college.
It
is noteworthy that this poisonous factory was initially proposed to be set up
at Dharmachak and Salempur, Dhariyapur, Chapra but villagers from there got a
relief when their village site was not selected for such hazardous industrial
activity.
In India, asbestos mining is technically banned and trade
in asbestos waste (dust and fibers) is also banned. Union Environment Ministry’s Vision Statement on
Environment and Human Health reads, "Alternatives to asbestos may be used
to the extent possible and use of asbestos may be phased out" but the
Experts Appraisal Committee of this very ministry continues to give
environmental clearance to such hazardous industries. This is notwithstanding
the fact that "The Government of India is considering the ban on use of
chrysotile asbestos in India to protect workers and the general population
against primary and secondary exposure," as announced in a concept paper
by the Ministry of Labour. Both these documents are available on central
government’s website but struggle to make Indians safe from deadly exposure of
asbestos fibers continues in the face of misinformation campaign of the killer
industry.
As
per Supreme Court's judgment of January 27, 1995 in Writ Petition (Civil)
No.206 of 1986 which was reiterated on January 21, 2011, the State govt has to
comply with fresh ILO, resolution of June, 2006 on Asbestos and the health
records of workers have to be maintained for 40 years and for 15 years after
the retirement. The Judgment also stipulates compensation for such workers who
suffer from asbestos related diseases. In violation of Court's orders, the Nibhi
company has not been maintaining the health record of the workers in its
factory at Giddha, Koilwar. It is not conducting Membrane Filter test to detect
asbestos fibre. It is not insuring health coverage to workers and that the
company does not have qualified occupational health doctors to undertake these
tasks.
There
is a compelling reason to ensure that both these companies in question are
tasked to decontaminate asbestos laden factory sites, building, prepare a
register of victims of asbestos related diseases and announce a compensation
fund for victims of fatal diseases remains to be undertaken. This is required
to save present and future generation from incurable asbestos related diseases.
It was listed for hearing on 8 February 2017, 23 March, 7 April, 12 April, 27April,
5 July, 11 July and 21 July 2017. So far High Court the Nibhi asbestos factory
case has been listed on nine occasions since the filing of the case on
September 1, 2016.
It
may be recalled that after more than five years of villagers' struggle against
lung cancer causing asbestos based plant of West Bengal based Balmukund company
in Chainpur-Bishunpur, Marwan block in Muzaffarpur district of Bihar was
closed. It had approval for 3 lakh ton per annum capacity. Bitter resistance
against the proposal of West Bengal based Utkal Asbestos Limited (UAL) at Chaksultan
Ramppur Rajdhari near Panapur in Kanhauli Dhanraj Panchayat of in Goraul block in Vaishali made the Bihar Chief Minister
Nitish Kumar intervene after a delegation of leaders from Left parties and
anti-asbestos activists met him in this regard. I worked with Khet Bachao
Jeevan Bachao Jan Sangarsh Committee of Muzaffarpur
and Vaishali to resist the setting up such hazardous plants and represented it
in negotiations. Bihar State Pollution Control Board (BSPCB) cancelled the No
Objection Certificate given to the UAL company. It had approval for 2.5 lakh
ton per annum capacity. This company also operated Giddha, Bhojpur based
asbestos factory for some time as well. After he was presented a memorandum
signed by 10, 000 villagers, BSPCB’s Chairman stood his ground against the
factory because it had violated the Battery Limit fixed for such hazardous
industries. Company representatives compared harmful effects of asbestos
exposure to harm from drinking too much alcohol and road accident. This was
emphatically rejected by the villagers as quite insensitive. The peoples
struggle led to stoppage of proposed asbestos based plant of 1.25 lak tons per
annum (TPA) capacity in Pandaul, Sagarpur, Hati tehsil in Madhubani. The
proposal of 2.5 lakh TPA capacity plant by Hyderabad Industries Ltd in Kumar
Bagh, Bettiah, West Champaran has also been stopped. The company has
constructed a boundary wall amidst rich agricultural field but faces court
cases from villagers.
Clearly, Bihar is paving the path
for an asbestos free country like some 60 countries which have banned white
chrysotile asbestos, the key carcinogenic mineral fiber imported from Russia,
Kazakhstan, Kyrgyzstan and Zimbabwe. It is high time other States also took
cognizance of the harmful effect of use, manufacture and trade of asbestos
based products. In a significant development, Kerala Human Rights Commission
has recommended ban on use of asbestos in public buildings. National Human
Rights Commission has observed, “Replace the asbestos sheets roofing with
roofing made up of some other material that would not be harmful to inmates” in
Case No.693/30/97-98.
It is unbecoming of the India’s
scientific stature to take untruthful and unscientific position displaying unpardonable callousness
towards concerns of consumers, public health, workers, environment and human
rights. India should learn from countries that have banned asbestos of all
kinds including white chrysotile asbestos. These countries are: 1) Algeria, 2) Argentina, 3) Australia, 4)
Austria, 5) Bahrain, 6) Belgium, 7) Brunei, 8) Bulgaria, 9) Chile, 10) Croatia, 11) Cyprus, 12) Czech Republic,
13) Denmark, 14) Egypt, 15) Estonia, 16) Finland, 17) France, 18) Gabon, 19) Greece, 20) Germany, 21)
Gibraltar, 22) Hungary, 23) Honduras, 24) Iceland, 25) Iraq, 26) Ireland, 27)
Israel, 28) Italy, 29) Japan, 30) Jordan, 31) Kuwait, 32) Latvia, 33) Luxembourg,
34) Lithuania, 35) Mauritius, 36) Mozambique, 37) Malta, 38) Netherlands, 39)
New Caledonia, 40) New Zealand, 41) Norway, 42) Oman, 43) Portugal, 44) Poland,
45) Qatar, 46) Romania, 47) Saudi Arabia, 48) Sweden, 49) Switzerland, 50) Serbia, 51) Seychelles,
52) Slovakia, 53) Slovenia, 54) South
Africa, 55) South Korea, 56) Spain, 57)
Turkey, 58) Uruguay, 59) United Kingdom and 60) Ukraine.
Although domestic laws in India recognize
white chrysotile asbestos as hazardous, the Union Government has been taking
inconsistent position in this regard in UN meetings. Government should take
steps to rectify the blunder it has committed by immorally and illegitimately
denying right to know about hazardous substances to present and future Indians.
It should factor in views of health and environment ministers to pave the way
for creating a future which is free of incurable hazardous asbestos related
diseases. Indian laws include asbestos
in the list of hazardous substances but tremendous influence of commercial
interests has forced the Indian delegation to take a position which is
diametrically opposite of domestic laws.
It is hoped that India will learn
from anti-asbestos struggles in Bihar and revise its position at the next meeting
of UN’s Rotterdam Convention on the prior informed consent procedure for
certain hazardous chemicals and pesticides in international trade in 2019 to
defend democratic right of people to be protected from hazardous substances.
The listing of white chrysotile asbestos in the UN list of hazardous substances
helps in better protection of public health and environment. India should
refrain from taking positions which is contrary to its own domestic law.
Nibhi's hazardous cancer causing factory is situated in front of the Trident B.Ed College, Giddha, Koilwar, Bhojpur affiliated to Arybhatt Knowledge University, Patna. The college has 6 acres of land situated at Giddha Industrial Growth Center. It is at a distance of 50 kms from the state capital on NH 30. There is just a brick boundary separating the factory and the Be. Ed college. In order is safeguard the teachers and staff of this college, the company should be made to decontaminate the site of the factory before moving away after the High Court's verdict.
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