Ban Asbestos in the United States

Asbestos, Asbestos Containing Material (ACM), Asbestos Wastes and their Impact on Worker’s Health

Gopal Subramanium, Additional Solicitor General of India began his arguments on 30 August in the matter of Hazardous wastes/ship-breaking/Blue Lady (S S Norway, S S France) case. He dwelt on the use, reuse and safe use of asbestos, asbestos containing material and asbestos wastes. He was assisted by former Additional Solicitor-General Mukul Rohatgi who explained to the bench that there is difference between hazardous waste and hazardous material but forgot to tell what is the status of hazardous material meant for disposal. It is noteworthy that the issue of asbestos is quite pertinent since this will set precedent of continued use of asbestos in India. Sanjay Parikh, a well known environmental lawyer who has been arguing the hazardous wastes case since 1995 has submitted that asbestos is a proven human carcinogen (a substance which can cause cancer). No safe level can be proposed for asbestos products because a threshold is not known to exist. Diseases such as cancer, mesothelioma and asbestosis are taking its toll and greater the exposure, the greater the risk of developing them.

Both consumers and workers are at huge risk. The exposures of workers installing, maintaining and handling asbestos-cement products are quite high, and this exposure defies regulatory control efforts. Asbestos has however, one very dangerous quality, as it accumulates in the body; the microscopic fibers lodged in tissues can remain like little time bombs and cause cancer years later. Since asbestos exposure is cumulative, young people are in particular need of protection. The empirical research says "Adults have three or four decades to develop cancer after exposure". "The kids have six or seven. This means that a smaller dose of a carcinogen is as dangerous to the kids as a larger dose of it is to adults".

“Why is it that the concern of the countries which have banned asbestos not relevant to India?” While asbestos imports and use continues to grow in countries like India, its use has decreased significantly in the developed countries. Canada exports almost all of the asbestos (more than 96%) mined in the country, especially to Asia, including India, whereas asbestos use in Canada is almost non-existent. In the US, demand for asbestos has continued to decline. The developed world has responded to the asbestos health catastrophe with bans on the use of asbestos.

All forms of asbestos except Chrysotile Asbestos/White Asbestos are banned in India. Mining of asbestos is also banned since no new lease for asbestos mining is allowed. The export and import of asbestos waste (dust and fiber) is also banned as per Indian Hazardous Waste (Management & Handling) Rules, 2003. But import of Canadian and Chrysotile asbestos is still allowed despite ban in some 40 countries due to incurable but preventable cancer caused by this killer fiber in the name of its continued mythical “safe and controlled use”.

As this unfolds, the global asbestos industry is transferring its commercial activities to the developing countries. "Multinational asbestos corporations present a deplorable history of international exploitation. These firms have opened large and profitable internal and export markets in Brazil and elsewhere in South America, and in India, Thailand, Nigeria, Angola, Mexico, Uruguay, and Argentina."

Current Status in India: Dealing with “Impact of Hazardous Waste on Worker’s Health”, Hon’ble Supreme Court directed the government “to examine the matter and enumerate medical benefits which may be provided to the workers having regard to the occupational hazard as also keeping in view the question of health of the workers and the compensation which may have to be paid to them. The Committee while examining the recommendations, shall also keep in view the judgment of this Court in Consumer Education and Research Centre vs. Union of India (1995 (3) SCC 42).”

In the Consumer Education and Research Centre vs. Union of India matter the Supreme Court directed Union and the State Governments are directed to review asbestos standards must be reviewed “every 10 years and also as and when the ILO gives directions in this behalf consistent with its recommendations or any convention; (5) the Union and all the State Governments are directed to consider inclusion of such of those small-scale factory or factories or industries to protect health hazards of all workers engaged in the manufacture of asbestos or its ancillary products; appropriate Inspector of Factories in particular of the State of Gujarat, is directed to send all the workers, examined by the ESI hospital concerned, for re-examination by the National Institute of Occupational Health to detect whether all or any of them is suffering from asbestosis. In case of the positive finding that all or any of them are suffering from occupational health hazards, each such worker shall be entitled to compensation in a sum of rupees one lakh payable by the factory or industry or establishment concerned within a period of three months from the date of certification by the National Institute of Occupational Health.” (pg 73, 74. 1995 (3) SCC 42)

Although the Court had directed Union and State Governments to take action consistent with ILO resolutions and Convention on Asbestos, the concerned Ministries have not even initiated any action in pursuance of ILO’s Resolution on Asbestos dated 14th June, 2006 stating “the elimination of the future use of asbestos and the identification and proper management of asbestos currently in place are the most effective means to protect workers from asbestos exposures and to prevent future asbestos-related disease and deaths” has not been acted upon. That even if the use of asbestos products is discontinued there are and there will be a massive number victims from past asbestos exposure as is being experienced globally in US, Europe, Australia, Japan and other countries, therefore, the compensation amount may be increased from the current Rs 1 lakh. There is an urgent necessity for the creation of NIOH like facility in each state to deal with the imminent unprecedented environmental and occupational health crisis from asbestos exposure.
In this connection it is relevant to submit that asbestos has been banned throughout the European Union since 1 January 2005.

Asbestos is now a banned substance throughout all twenty-five member countries of the European Union. A five year phase-out period which was permitted under Commission Directive 1999/77/EC ended on January 1, 2005. The countries that have banned asbestos are Argentina, Australia, Austria, Belgium, Chile, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Gabon, Germany, Greece, Honduras, Hungary, Iceland, Ireland, Italy, Japan, Kuwait, Latvia, Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Saudi Arabia, Seychelles, Slovakia, Slovenia, Spain, Sweden, Switzerland, United Kingdom (including England, Scotland, Wales and Northern Ireland), Uruguay and others.

On June 21, 2004, South Africa announced a 3-5 year phase-out of asbestos use and a ban on asbestos. Vietnam has banned the usage of chrysotile as a building material and is making more serious attempts than most Asian countries to remove asbestos from workplaces and replace it with safer alternatives. Vietnam announced its plan to ban in 2004. South Korea and Peru have also announced that they will soon ban asbestos.
Asbestos and Asbestos Hazards

The word 'asbestos' in Greek means 'indestructible'. All types of asbestos tend to break into very tiny fibre, almost microscopic. In fact, some of them may be up to 700 times smaller than human hair. Because of their small size, once released into the air or water they may stay suspended for hours or even days. Because of its high durability and with tensile strength asbestos has been widely used in construction and insulation materials - it has been used in over 3,000 different products. After mining and milling (crushed/grinding), Asbestos is processed through various methods and used for making cement products, gasket sheet material, friction material, heat resistant textiles, some special applications like in paints, thermoplastics etc. In addition it is used for textiles, laminated products, tape, gland packing, packing ropes, brake lining and jointing used in core sector industries such as automobile, heavy equipment, petro-chemicals, nuclear power plants, fertilizers, thermal power plants, transportation, defense. Asbestos fibre is used in manufacture of asbestos cement roofs, pressure and non pressure pipes, sewage, irrigation and drainage system in urban and rural areas etc.
Asbestos is world's most notorious industrial health hazard. The primary routes of potential human exposure to asbestos are inhalation.

Asbestos is used so widely that the entire population is potentially exposed to some degree. According World Health Organisation "Damage to asbestos-containing material can result in the release of small asbestos fibres that become airborne and are readily inhaled. These fibres can remain in the lungs for long periods and can cause serious lung disease." Therefore, it is harmful to not only the workers who make the asbestos products and handle them but also to the consumers who use them. In such a scenario, all studies concerning health hazards of asbestos are relevant.

WTO Appellate Body on Asbestos

WTO Appellate Body in the case of EUROPEAN COMMUNITIES – MEASURES AFFECTING ASBESTOS AND ASBESTOS-CONTAINING PRODUCTS attempted to resolve such competing values as health protection and free trade. It verdict validated the rights of Member States to prohibit the import and use of goods, which contain carcinogenic substances such as Chrysotile asbestos was delivered on March 12, 2001 by the WTO’s Appellate Body (AB). It was issued in the case of Canada vs. the European Communities. AB Judges Florentino Feliciano, James Bacchus and Claus-Dieter Ehlermann confirmed that chrysotile is an established carcinogen, that there is no safe threshold and ‘controlled use’ is not an effective alternative to a national ban.

WTO Appellate Body noted: “...the manufacture, processing, sale, import, placing on the domestic market and transfer under any title whatsoever of all varieties of asbestos fibres shall be prohibited, regardless of whether these substances have been incorporated into materials, products or devices. It further ordered, "..." the manufacture, import, domestic marketing, exportation, possession for sale, offer, sale and transfer under any title whatsoever of all varieties of asbestos fibres or any product containing asbestos fibres shall be prohibited."