Tuesday, October 1, 2013

Patna High Court awaits CPCB Commitee's report on Bihar's hazardous asbetsos plants

A Central Pollution Control Board (CPCB)'s Committee set up by Patna High Court visited the controversial site of the proposed asbestos based factory of Utkal Asbestos Limited (UAL) of Utkal Asbestos Limited (UAL) on September 15, 2013.

This was a result  of the case filed by Utkal Asbestos Limited (UAL), Kolkata contesting the order of the Bihar State Pollution Control Board (BSPCB) cancelling its Consent to Establish (No Objection Certificate) for a proposed asbestos based factory, at Village: Chak Sultan Rampur Rajdhari, near Panapur in Kanhauli Dhanraj Panchayat, Goraul, Mahuwa, District- Vaishali, Bihar due to violation of BSPCB’s Guidelines regarding the battery limit of “a distance of minimum 500 meters from the National/State Highway, Railway line, river and human habitation” proximity to the residential areas.

Patna High Court asked CPCB to constitute a 5 member committee undertake measurement of the residential areas from the asbestos plant under construction in its order dated August 19, 2013 and submit the report by September 19, 2013. CPCB Committee has not submitted the report so far and has sought time till October 7, 2013.    The five members of the CPCB Committee are:
1.     Shri D Brahmaimaih, Scientist 'C', Zonal Office Vadodara
2.     Dr S. S. Bala, Scientist 'E', CPCB, Delhi
3.     Shri Sundeep, Scientist “D”, CPCB, Zonal office Kolkata
4.     Sh V.P Yadav, Scientist “D”, CPCB, Delhi
5.     Shri P K Gupta, Scientist “D”, CPCB, Delhi

Patna High Court order of August 19, 2013 reads: “After marathon arguments for days, this Court has felt the necessity to involve the Central Pollution Control Board (for short “the Central Board”) in the matter only because this Court has now gathered an impression that the actions of the Bihar State Pollution Control Board (for short “the State Board”), at least in this matter, have not been above board.”

It further observes, “The State Board has laid down some norms, in the form of a “Guidelines”, which may or may not be statutory, but has been held valid by another Division Bench of this Court. Hence the same has to be followed by all entrepreneurs proposing to set up any industry to which the Guidelines may be applicable. At least this much is clear that these “Guidelines” are meant for protection of environment and prevention of possible health hazard to the people for generations.”

The Court observed, “…it will not be proper for this Court to disbelieve only that part of the report of the State Board which is against the petitioner and accept the part which may be in its favour. Hence, in the opinion of this Court, the said Committee of the Central Board is necessarily required to be given a free hand in inspection, measurement and report in the matter. Moreover, in view of the order of the Division Bench, petitioner was also at liberty to approach it in the said PIL itself to enable the Division Bench to monitor the matter. But instead of approaching the Division Bench, petitioner itself has chosen to file this fresh writ application in this Court. Hence, it cannot raise a grievance that this Court is taking the matter to the realm of public interest or proceeding beyond the orders of the Division Bench, by passing this order in the circumstances elaborated above.”

The order reads: “This Court has indicated earlier that the conduct of the State Board and its officials have been such that it is difficult for this Court to place reliance on facts and figures containing in their affidavits and documents. Hence, this Court considers that instead of confining the inspection by the said Committee of the Central Board only to measurement of the distances, it is appropriate that it should hold inspection in the light of the established norms for setting up of Asbestos manufacturing industry as applicable in the Country.”

The Court’s direction reads: “After careful consideration of the matters in which this Court requires assistance of the Central Board, this Court formulates some queries for the Central Board to answer and issues some directions for it and others to comply. They are:-

(i)              – Whether the norms contained in the Guidelines framed by the State Board are in conformity with all India norms and with the same yardsticks and the same requirement of specifications for establishment of an industry?

(ii)            – Whether any State Pollution Control Board has the liberty to relax the norms in favour of any industry, already running or about to be established, in an industrial area, or elsewhere ?

(iii)          – The Central Board shall also take into account the provisions of Item 27 of Schedule-I of the Environment (Protection) Rules, 1986, providing for parameters for emissions for all types of Asbestos manufacturing units and shall express its opinion regarding its effect and import on established norms for setting up of an Asbestos manufacturing unit as applicable in the Country.

(iv)          – The Central Board is directed to constitute a committee of at least five of its qualified and experienced officers.

(v)            – The said Committee shall draw up a programme to visit the site of the petitioner for inspection, preferably on a holiday.

(vi)          – The said Committee shall inform its programme to the State Board, the District Magistrate, Vaishali, the Superintendent of Police Vaishali and the District & Sessions Judge, Vaishali.

(vii)        – The District Magistrate shall co-ordinate and shall see to it that the Committee of the Central Board is given all assistance and all facilities during its visit and in the inspection of the site of the petitioner.

(viii)      – The Superintendent of Police, Vaishali shall see to it that there is no hindrance to the said Committee in the visit of the site of the petitioner and its inspection. He shall particularly see that no member of public creates any unruly scene on the site and during the inspection and shall, if necessary, cordon off such area for such time as may be required.

(ix)          – The District and Session Judge, Vaishali is requested to depute a judicial officer, of the rank of Additional District and Session Judge to witness the entire visit and inspection of the site of the petitioner by the said Committee. After the completion of inspection, he shall submit his report, through the District and Session Judge, Vaishali, to this Court in this case, in a sealed cover within a week, in which he shall also report about the persons present during the inspection.

(x)            – The Committee shall identify the location of the source of emission/ Chimney and the battery area of the proposed unit of the petitioner, in reference to the revised plan submitted by the petitioner before the Division Bench and available in a sealed cover with Sri Shivendra Kishore, learned counsel for the State Board, and hold the inspection of the site and take measurements in the back ground of the established norms for setting up an asbestos manufacturing unit.

(xi)          – The said Committee shall submit its report, with its recommendations in respect of establishment of petitioner‟s industry, to this Court in this case, preferably within one month from today.

(xii)        – During the inspection by the said Committee, one representative of the State Board, one representative of the petitioner along with its technical staff to aid and assist shall and Sri Shivendra Kishore, learned counsel of the State Board and Sri Mukul Sinha, learned counsel for the petitioner, if they desire, may be present to witness the inspection.

The Court aptly asked, “Does it mean that, in spite of the entire State of Bihar having been declared “Air Pollution Control Area” long back, the industries running in the industrial areas in the State are not required to follow the norms and are permitted to cause environmental pollution and health hazard to the people residing around the industrial areas and to their coming generations?”

In its last order dated September 19, the High Court stated that it awaits the report of the CPCB Committee.

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