More than 60 countries have banned asbestos
Calcutta High Court & Kerala Human Rights Commission show the way
23rd anniversary of Supreme Court’s landmark verdict for environmental and occupational health is reminder of its non-implementation by centre and state governments
In a curious case of total environmental lawlessness, the monitoring report of the regional office of Union Ministry of Environment, Forests and Climate Change points out that although Tamil Nadu based Nibhi Industries Private Limited has been given environmental clearance (EC), the Environment Impact Assessment (EIA) report of company’s Bhojpur, Bihar based asbestos factory has not been provided to it. The reply to a RTI question by Bihar State Pollution Control Board (BSPCB) also informed that the EIA report is non-existent. The monitoring report points out that there has been no compliance with the specific conditions with regard to regular medical examination of the workers and health monitoring of all the employees shall be carried out and if cases of asbestosis are detected, necessary compensation shall be arranged under the existing laws. A competent occupational health physician shall be appointed to carry out medical surveillance. Occupational health of all the workers shall be monitored for lung function test, chest x-ray, sputum for acid-fast-bacilli (AFC) and asbestos body (AB), urine for sugar and albumen, blot tests for TLC, DLC, ESR, Hb and records maintained for at least 40 years from the beginning of the employment or 15 years after the retirement or cessation of employment whichever is later. Occupational Health Surveillance shall be carried out as per the directives of the Hon’ble Supreme Court.” The matter has been pending before Justice Shivaji Pandey Bench “for order” and has now been put before Justice Vikas Jain bench “for admission” in Patna High Court as per Court’s website.
This act of omission reflected in the monitoring report is in violation of Supreme Court's order dated January 27, 1995 on right to health in general and against asbestos hazards in particular. This order has been reiterated on 21st January, 2011 by the Court. It has been referred to by Patna High Court as well in Civil Writ Jurisdiction Case No.9064 of 2013 and related cases. The company failed to provide any document on occupational health surveillance of the workers.
Justice J.N. Singh of Patna High Court had apprehended a Bhopal Gas Tragedy like situation due to Bihar's asbestos plants. It wondered as to whether any pollution control board has or should have the power to relax the norms, meant to control environmental pollution and safeguard the humanity from health hazards and any recurrence of Bhopal Gas Tragedy. It expressed surprise at the relaxation for the two asbestos based manufacturing units of Tamil Nadu based Nibhi company at Giddha, Koilwar, Bhojpur and Tamil Nadu based Ramco company at Bihiya, Bhojpur in Bihar while cancelling the clearance of the asbestos based factory unit Vaishali’s Chaksultan Rampur Rajdhari near Panapur in Kanhauli Dhanraj Panchayat in Goraul block in Bihar which was proposed by West Bengal based Utkal Asbestos Limited (UAL).
The monitoring committee’s report observes that Nibhi asbestos company was required “to educate the workers, all the work places where asbestos dust may cause a hazard shall be clearly indicated as a dust exposure area through the use of display signs which identifies the hazard and the associated health effects.” Given the fact that asbestos of all kinds is banned in some 60 countries due to its harmful effect, compliance with this condition is deemed important by the government. As per the monitoring report there is no compliance with this condition as well.
Here is a factory which has become a case study in environmental health mismanagement. Even as Nibhi Industries V State of Bihar, writ petition (CWJC) No. 15399 of 2016 is pending for order before Justice Shivaji Pandey Bench in Patna High Court since August 2017, a new case Nibhi Industries Vs Union of India, writ petition (CWJC) No. 13269 of 2017 has been filed in the Court. Initially, both the cases were listed together before the same bench for orders. On 15 September, 2017 when CWJC) No. 15399 of 2016 came up for hearing before Justice Pandey, he passed an order saying “Put up this case along with CWJC No. 13269 of 2017. Earlier, on 23 August, 2017, he had passed an order saying, “If the petitioner, so desires, may file an application for separate writ application with respect to the air and water pollution.”
It is noteworthy that prior to this the writ petition (CWJC) No. 15399 of 2016 has been listed continuously “for orders” on several occasions between 7 April, 2017 -23 August 2017 but was adjourned on each occasion. Now the case status on the Court’s website shows that the matter has been listed for orders before Justice Vikash Jain on 16 November and 24 November, 2017. Now both the cases have been put before a new bench of Justice Vikash Jain. Earlier, when the case came for hearing on 16 November, 2017, Justice Jain passed an order saying, “As prayed on the ground of non-availability of learned counsel for the petitioners, let the matter be listed on 24.11.2017.” It was scheduled to be listed on 24 November as per court’s website but it did not appear in the cause list. As of 27 January 2018, there is no information on High Court’s website about the next date of hearing.
It is also noteworthy that the bench of Justice Vikash Jain had set aside the order dated 15 January, 2015 of Principal Secretary, Department of Industries, Bihar in the matter of grant of subsidy to the asbestos company in question giving relief to it in Nibhi Industries Vs State of Bihar, writ petition (CWJC) No. 10908 of 2015 “with a direction to the respondents to proceed in the matter of obtaining approval of the Chief Minister and accordingly dispose of the matter expeditiously and in any event preferably within a period of three months from the date of receipt/production of a copy of this order in the office of Principal Secretary, Department of Industries, Government of Bihar, Patna.” But the relief and the direction for obtaining “approval of the Chief Minister” became inconsequential because Investment Promotion Board (SIPB) re-considered the case in the light of cancellation of company’s Emission Consent Order and the Discharge Consent Order by Bihar State Pollution Control Board (BSPCB) affirmed the decision of the BSPCB. Earlier, a bench of Justice Mihir Kumar Jha too had given relief to the company by its order dated 16 September, 2014. This too seems to have become inconsequential.
In view of such a situation, the second petition CWJC) No. 13269 of 2017 appears to be hunting for a convenient forum in an exercise of forum shopping. It appears that the Court has not paid attention to the glaring acts of omission and commission by the company endangering the life and health of the public health of residents of Koilwar, Bhojpur.
The asbestos fiber cement roofing sheet factory of Nibhi Industries Private Limited at Giddha, Koilwar block, Bhojpur district in Bihar in a 15 acre area has been found non-compliant with the stipulated conditions contained in the Environmental Clearance (EC) dated 27 February, 2009 given to it. This has been come to light from the monitoring report of Ranchi based regional office of Union Ministry of Environment, Forests and Climate Change dated 17 August, 2017. This report is based on the monitoring done by the regional office and BSPCB on 25 July, 2017. Notably, the commercial production of asbestos cement sheets at Nibhi’s factory at Giddha, Koilwar, Bhojpur had begun on 17 August, 2011.
The second petition in the High Court has prayed for issuance of a Writ of Certiorari, quashing/setting aside the order dated 29 March, 2016 issued by Chairman, BSPCB whereby the Board has revoked its Emission Consent Order and the Discharge Consent Order which was valid till 31 March, 2018. It further prays that the order of BSPCB dated 22 September, 2016 directing Nibhi Industries Private Limited “to close its industrial plant with immediate effect" to be quashed.
The first petition has prayed for quashing/setting aside the order dated 21 July, 2016 issued by Director, Technical Development, Department of Industries, Bihar. This order is significant because through this order letter, the Department of Industries informed Nibhi asbestos company that 21 June, 2016, the State Investment Promotion Board (SIPB) has decided to cancel its consent given earlier to this company in 2009 for the establishment of asbestos cement sheet plant of 1 Lakh Metric Ton/Annum capacity at Giddha, Koilwar, Bhojpur. The decision was taken in the light of the BSPCB’s communication to it dated 8 April, 2016 about withdrawal of its consent given to the factory of this company. A copy of this decision of SIPB was also sent to BSPCB and Bihar Industrial Development Authority (BIADA).
It is noteworthy that in their counter affidavits in the first case, Department of Industries, Bihar and BSPCB have sought dismissal of the petition by Nibhi asbestos company on the ground of its maintainability. BSPCB has pointed out that the company has failed to appeal before the appellate authority within 30 days from the date of order. Had it approached the appellate authority and felt aggrieved by its decision, the company could have approached the National Green Tribunal. Thus, it is clear that the company failed to seek and exhaust available alternate remedy before approaching the High Court. In such a situation, while the Court is likely to dismiss both the petitions but the proclivity of the petitioner to delay the decision by non-appearance on the scheduled dates for orders has become a sight of curiosity.
Bihar State Pollution Control Board (BSPCB) has revoked its emission-consent order and discharge consent order which was valid till 31st March, 2018. Chairman, BSPCB has ordered, the company in question, Tamil Nadu based 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.”
In such a backdrop, there appears to be a compelling logic for the Court and the concerned authorities to ask the company to undertake decontamination of the site and create a compensation fund for present and future victims of Nibhi’s factory given the fact that it has exposed the workers besides the villagers of Giddha panchayat in particular and Koilwar block in general to asbestos fibers. This is required in the interest of present and future generations, to establish rule of law in environmental governance and to set matters right on the ground.
The clearance of second asbestos based factory in Bihiya, Bhojpur too has been cancelled but Ramco company continues to operate two units of its factory although it had clearance for only one. As a consequence of violations of the general and specific conditions given the environmental clearance and No Objection Certificate by Ramco Industries, BSPCB’s Chairman took its cognizance. He has issued an order saying, “I therefore, have no option but to treat this unit as a non-compliant industry and am not inclined to renew the Emission-Consent-Order and Discharge-Consent-Order for further period beyond 31.3.2016. The applications for Emission-Consent-Order and Discharge-Consent-Order dated 12.2.2016 are, accordingly, refused.” Both these cases demonstrate that there is no compliance with the six directions given in Supreme Court’s order of 27 January1995 on the ground which endangers the health of workers and the communities living in the vicinity by failing to ensure a safe working environment.
Calcutta High Court & Kerala Human Rights Commission pave the way
In a significant development, a Division Bench of Calcutta High Court has passed an order which can set the process of making West Bengal free of asbestos based products. The order seeks removal of carcinogenic-asbestos that has been used for roofing in the Court’s buildings. This order underlines the serious unprecedented environmental and occupational health crisis with regard to the unnoticed epidemic of asbestos related diseases in West Bengal in particular and in the country in general. In Writ Petition (Civil). No. 14729 (W) of 2016, the Bench of Acting Chief Justice Nishita Mhatre and Justice Tapabrata Chakraborty passed the verdict observing, “The High Court main building is undergoing repairs with the assistance of the Public Works Department (PWD) of the Government of West Bengal and other Authorities. When the entire renovation is undertaken, it is expected that the High Court and the PWD or, any other body entrusted with the renovation will ensure that the asbestos-sheets, which have been used for roofing, would be replaced by any other materials which are non-carcinogenic.”
Calcutta High Court has recorded that “there is sufficient study material indicating that asbestos sheets used for roofing could cause cancer” and “various documents, issued by the World Health Organization (WHO), and other materials obtained from the Internet, that the exposure to asbestos including chrysotile causes lung cancer, mesothelioma and asbestosis.” It was contended by the petitioner that “the High Court should not continue to use these materials for roofing, especially after legislation in different parts of the world has been enacted on recognizing the potential health risk of asbestos to the citizens at large. Even in India several Acts recognized the fact that asbestos is a health-hazard.”
Prior to Calcutta High Court’s verdict, Kerala State Human Rights Commission recommended ban on use of asbestos roofs for schools and hospitals by its order. National Human Rights Commission (NHRC) too has passed an order in Case No: 693/30/97-98 recommending that the asbestos sheets roofing should be replaced with roofing made up of some other material that would not be harmful.
As per Directorate General of Commercial Intelligence and Statistics and Indian Bureau of Mines, there is continuous decline in import of asbestos during the period of 2014-15 to 2017-18 (April-September). India’s total asbestos import from Russia, Kazakhstan, Brazil, China and other countries dropped to 310,570 tonnes in 2016-17 from 396,470 tonne in 2014-15 and 355,660 tonnes in 2015-16. It shows that import of asbestos from countries like China, Russia, Kazakhstan and Brazil has declined in the last three financial years. India imported 310,570 tonnes of asbestos in 2016-17 from Russia, Kazakhstan, Brazil, China and other countries. During April-September of the ongoing fiscal, India imported just 162,740 tonnes of asbestos. This has been revealed by the Union Mines Minister in the Parliament. India has banned mining of its own asbestos mines but it chooses to import thousands of tones of asbestos. The inconsistency in government’s policy is apparent from the minister’s reply in the Parliament.
It is noteworthy that Vision Statement on Environment and Human Health of Union
environment, forests and climate change ministry states that “‘Alternatives to asbestos may be used to the extent possible and use of asbestos may be phased out.” . It is quite astounding that while “Grant of fresh mining leases and renewal of existing mining leases for Asbestos” has been banned by the Ministry of Mines in the country on Health Grounds , India continues to import asbestos. It shows that government has not translated its own vision into action.
Asbestos mineral fiber of all kinds including white chrysotile asbestos has been certified by the World Health Organisation (WHO) to be carcinogenic. Asbestos related diseases are preventable but are incurable. The prevention can only happen if one is saved from exposure to air borne asbestos fibers, which are always in a state of decay and erosion even when it is mixed with cement. Such fibers can be seen with naked eyes in the asbestos based roofs and other products like brake shoe and brake lining in almost all the vehicles. Asbestos causes mesothelioma (cancer of the thin membranes that line the chest and abdomen) and cancers of the lung, larynx and ovary. National Institute for Health and Family Welfare estimates secondary exposure to asbestos used in construction has resulted in higher incidence of cancer among those living under asbestos roofs.
What aggravates the situation in India is that among the most deprived and marginalized communities as many as 16.4 per cent in the rural areas and 20 per cent in the urban areas live and work under asbestos roofs. Some 79 per cent of Dalits live in such houses. This came to light from the 2011 Census figures released on the Scheduled Caste households by amenities and assets by the Office of the Registrar General & Census Commissioner.
Union Ministry of Consumer Affairs is yet to make consumers aware of the hazards of asbestos to save the consumers from asbestos products. Ministry of Housing and Urban Affairs is yet to take remedial measures to by taking note of rampant presence of asbestos laden houses and buildings in cities and across the country. It is noteworthy that efforts are underway to make buildings of UNO free of hazardous asbestos. As part of $2.1 billion renovation work from 2008 to 2014, the amount of asbestos that was removed from the UN complex in New York City complex was enough to fill three football fields fifteen feet high.
The Geneva headquarters of the UN is also going to become asbestos free after UN General Assembly in New York approved the renovation project for the Palais des Nations complex in Geneva. This complex hosts around 10,000 UN employees, which is more than the official headquarters in New York. The work has commenced this year and is estimated to cost $846.6 million. A report presented by the UN Report of the Secretary-General in July 2000 had undertaken the assessment of asbestos-containing materials at United Nations buildings located in Geneva, Vienna and Nairobi and at regional commission buildings in Addis Ababa, Bangkok, Beirut and Santiago and harmful effects of such materials on the health of staff members, delegates and other persons working in and visiting the buildings. The ministry should order similar assessment for buildings in India. Similar efforts are required by urban development departments and urban local bodies to stop usage of asbestos in all the municipalities and in some 7, 935 urban centres.
Union Ministry of Rural Development and Panchayati Raj is yet to apprise all the Panchayats to refrain from procurement of construction of asbestos cements sheets and other asbestos based products to ensure asbestos free villages.
These days while India’s ministry of railways is rightly busy removing asbestos from railway platform across the country but one witnesses waste dump of broken roof sheets which is a design feature of every asbestos based product strewn around on the station and in nearby areas putting unsuspecting passengers and citizens at grave risk of exposure to the hazardous mineral fibers banned in some 60 countries. There is a compelling need to ensure barricading of the asbestos laden area to avoid any effect on passengers and locals in its surrounding. It must get a safety audit done so that only skilled and competent persons get employed for removing hazardous asbestos sheets. Asbestos abatement and removal must be carried out by a competent, approved asbestos removal contractor. Once the asbestos has been safely removed, there has to be certification of a clean air clearance. There must be a system for wrapping/disposal of removed sheets. The disposal of asbestos debris requires its proper scientific landfilling. The use of asbestos based products and technology carries continuing burden of harm throughout its life cycle.
Union Ministry of Human Resource Development is yet to intervene to ensure asbestos free educational institutions.
On 24 August, 2017, Constitutional Supreme Court of Brazil decided with 8 votes against 2 that the use of all kinds of asbestos is unconstitutional. The President of the Brazilian Supreme Court observed, “In concern of the environment, if any doubts, it must be prohibited so that the rights for us today and tomorrow won’t be lost for the ones that come after us.” Indian courts are yet to adopt this universally accepted precautionary principle and the inter-generational equity principle to save the public health of Indians like the Brazilian Court as far as implementation is concerned.
India’s Supreme Court and High Courts have consistently expressed their serious concerns regarding exposure to these carcinogenic mineral fibers and has asked the central and state governments to update their laws as per fresh resolution of ILO, which has sought elimination of future use of white chrysotile asbestos to safeguard human health. But the governments in India have not complied with its directions so far.
More than 60 countries including 1) Algeria, 2) Egypt, 3) Israel, 4) Mozambique, 5) Slovakia, 6) Argentina, 7) Estonia, 8) Italy, 9) Netherlands, 10) Slovenia, 11) Australia, 12) Finland, 13) Japan, 14) New Caledonia, 15) South Africa, 16) Austria, 17) France, 18) Jordan, 19) New Zealand, 20) Spain, 21) Bahrain, 22) Gabon, 23) South Korea, 24) Norway, 25) Sweden, 26) Belgium, 27) Germany, 28) Kuwait, 29) Oman, 30) Switzerland, 31) Brunei, 32) Gibraltar, 33) Latvia, 34) Poland, 35) Turkey, 36) Bulgaria, 37) Greece, 38) Lithuania, 39) Portugal, 40) United Kingdom, 41) Chile, 42) Honduras, 43) Luxembourg, 44) Qatar, 45) Uruguay, 46) Croatia, 47) Hungary, 48) Macedonia, 49) Romania, 50) Cyprus, 51) Iceland, 52) Malta, 53) Saudi Arabia, 54) Czech Republic, 55) Iraq, 56) Mauritius, 57) Serbia, 58) Denmark, 59) Ireland, 60) Monaco, 61) Nepal and 62) Seychelles have banned asbestos of all kinds because safe and controlled use of asbestos is not possible.
Although mining of all kinds of asbestos is technically banned in India. According to Indian Minerals Yearbook published in December 2015 import of white asbestos from Russia, Kazakhstan, Brazil and China continues. It endangers the public health of present and future Indians. If the Supreme Court 23 year old verdict and it six directions are read in the light of the scientific, medical and legal findings at a global level a case emerges for banning the import of all kinds of asbestos by India because human biology is same world over. Given the fact that health is a state subject it is high time State Governments banned this hazardous mineral fiber to save the life and health of present and future generations of Indians.
For Details: Dr Gopal Krishna, Ban Asbestos Network of India (BANI)/ToxicsWatch Alliance (TWA), Mb: 08227816731, 09818089660, Efirstname.lastname@example.org, Web: www.asbestosfreeindia.org, www.toxicswatch.org
P.S.: Asbestos free India campaign of Ban Asbestos Network of India (BANI) has been working for environmental and occupational health justice for last 17 years.