MEMORANDUM
ON
ASBESTOS
(Legalsteps is grateful to Barrister
Moyeen Alam Firozee
for his input in this project)
|
REGULATIONS IN EFFECT IN
|
PRIVATE AND CONFIDENTIAL
Prepared by
LEGAL STEPS
3A,
12,
Dhaka 1000,
Tel: +880-2-8651570, Fax: +880-2-8650261
INDEX
Part “A”
Introduction and Background
1.
Scope of the review and focus of the Memorandum
2.
Overall qualifications and Disclaimers
Part “B”
Executive Summary
Part “C”
The Memorandum
1.
ENVIRONMENTAL POLICY, LAWS AND ANCILLARY ISSUES
1.1
Background
1.2
National Environmental Policy, 1992
1.3
The
1.4
The Environment Conservation Rules, 1997 [ECR 1997]
1.5
The Environment Court Act, 2000 [ECA 2000]
2.
LAWS RELATING TO OCCUPATIONAL HEALTH
2.1
The Factories Act, 1965 [FA 1965] and the Factories Rules, 1979 [FR 1979]
2.2
Workmen's Compensation Act, 1923 [WCA 1923]
2.3
Penal Code 1860
3.
THE NATIONAL BUILDING CODE, 1993
4.
LAWS AND POLICIES RELATING TO IMPORT OF ASBESTOS AND
RELATED PRODUCTS
4.1
Import Policy Order, 2003-2006
4.2
Customs Act, 1969
5.
ASBESTOS RELATED LITIGATION AND
SOCIAL TRENDS
5.1
Litigation
5.2
Ship Breaking
5.3
Social campaign
Schedule I
Schedule II
Schedule III
PART - A
INTRODUCTION AND BACKGROUND
1.1
This Memorandum is prepared by
Legal Steps, Barristers and Advocates,
1.2
This Memorandum is
based on research conducted on
laws and regulations in
Bangladesh - regarding use,
import and disposal of
asbestos and asbestos-containing products; asbestos related litigation and
social trends etc.
for
consideration of (deleted to protect the
identity of our client),
a leading international general insurance company who is
currently conducting research
on regulations in effect in, inter alia,
Bangladesh on asbestos
and products that contain
asbestos..
2.
Overall qualifications and Disclaimers
This Report is subject to the following qualifications and disclaimers:
(a)
it has been prepared only for consideration of
(deleted
to protect the identity of our client);
(b)
our investigations only concerned, and our Memorandum only related to,
matters reviewed by us which are the subject of this Memorandum;
(c)
we have not gone beyond the scope of our instructions and have only
prepared the Memorandum in the manner agreed.
(d)
Though this Memorandum focuses on major legal, regulatory, and policy
issues that have arisen out of the research conducted by Legal Steps, the
Memorandum should not be relied upon as a summary of all principal legal,
regulatory and policy issues;
(e)
This Memorandum does not purport to make any comments or statements
relating to matters of financial, technical, cost, insurance, tax, operational
and other commercial aspects. This Memorandum does not address, nor does it
purport to address, such items and matters.
PART - B
EXECUTIVE SUMMARY
Judicial intervention on the matter is not yet made. A few environmental and
occupational health related organizations have recently initiated campaign on
banning asbestos though public awareness in relation to the impact on health and
environment due to asbestos and asbestos related material hazard is virtually
non-existent due to lack information and knowledge.
PART - C
THE MEMORANDUM
1.
ENVIRONMENTAL POLICY, LAWS AND ANCILLARY ISSUES
1.1
Background
1.1.1 Before nineties,
environment was not an important agenda in
1.1.2 A total 24 laws
have been identified that contain provisions regarding
conservation of environment and control of
environmental pollution from various
sources. Of these, the Bangladesh Environment Conservation Act,
1995, an
Act to provide for conservation of the environment, improvement of environmental
standards and control and mitigation of environmental pollution
which has come into force all over
1.2
National Environmental Policy, 1992
1.2.1 Under the National
Environmental Policy 1992, government attached special importance to the
protection and improvement of the environment. The objective of the policy,
inter alia, to maintain ecological
balance and overall development through protection and improvement of the
environment; to identify and regulate activities which pollute and degrade the
environment; to ensure sustainable, long term and environmentally sound use of
all national resources. In order to achieve the objectives and implement the
policy recommendation of the National Environment Policy, an Environment Action
Plan has been recommended.
1.2.2 The major policies
and action plan in relation to various issues affecting environment are as
follows:
1.2.2.1 Industries
Policy
To undertake Environmental Impact Assessment (EIA) for all new
industries both in public and private sectors and adopt corrective measures in
the existing industries cause pollution; impose
ban on establishment of industries producing goods which
cause environment pollution; close down such already existing
industries in phases and discourage use of
such polluting products through development introducing their environmentally
sound substitutes.
Prevent wastage of raw materials in industries and ensure their
sustainable use.
Action Plan
Ministry of Environment
and
1.2.2.2
Health & Sanitation
Policy
Prevent activities which are harmful to public health in all spheres,
including development activities in the country. Develop healthy environment in
the rural and urban areas. Ensure healthy workplace for workers.
Action Plan
Ministry of Health and
Family Planning,
Industry and other relate
Ministries and department
shall be responsible for taking necessary
steps to
protect the environment and public health from the adverse impact of all
radioactive substances and waste, atomic
substances, radioactive equipments including X-rays, atomic research
installations and atomic furnaces etc
1.2.2.3
Coastal and Marine Environment
Policy
Ensure environmentally sound conservation and development of
coastal and marine eco-systems and resources.
Prevent all internal and external activities polluting the coastal
and marine areas.
Action Plan
The Ministry of Shipping will
form a special cell to assess the characteristic and composition of waste before
approving its disposal in the sea.
Ministry of Defence,
Ministry of Environment
and
1.2.2.4
Housing and Urbanisation
Policy
Integrate environmental considerations into all housing and
urban planning activities and research.
Control housing and urban development schemes having adverse
impact on the local and overall environment.
Action Plan
Ministry of Public Works, Local Government Division
and other relate
Ministries and department
shall be responsible for
conducting Environmental Impact Assessment (EIA) before preparing national and
regional programmes and master plans regarding housing and
urban development.
Programmes related to housing
and urban development will be regularly
monitored and surveyed.
1.3
The
1.3.1 The
*
to co-ordinate with and assist any authority or agency having relevance
with the objectives of BECA, 1995;
*
to advise or direct the concerned person regarding the environment
friendly handling, storage, transportation, import and export of hazardous
substance or its components;
*
to issue direction to close or prohibit or regulate any industry,
initiative or process, who are responsible for environmental pollution by giving
reasonable opportunity to make its functioning sound.
1.3.2 Under s. 6A of
BECA, 1995
Government may issue directions imposing absolute ban on the manufacture,
import, marketing, sale, demonstration for sale, stock, distribution, commercial
carriage or commercial use of all kinds of article made of polyethylene or
polypropylene, or any other article which is injurious to the environment, or
allow the operation or management of such activities under conditions specified
in the notification.
1.3.3
Under s. 8 of
BECA, 1995
if any person who suffers harm or is at potential risk to harm to health or
their property because of pollution or environmental degradation, has the right
to apply for remedy of the damage to the Director General of the Department of
Environment in the prescribed form. The Director General may hold a public
hearing to review any application for redress and must dispose of the same
within three months of its receipt. Where the Department fails to dispose of the
application in time, affected person may submit the matter before the
1.3.4
Under s.9 of
BECA, 1995
where discharge of any environmental pollutant occurs or is likely to occur in
excess of the limit prescribed by the Rules, the person responsible and the
person in charge of the place of occurrence shall take measures to control or
mitigate the environmental pollution and inform the Director General of
Department of Environment
who shall take necessary remedial measures to control or mitigate the
environmental pollution. The expenses incurred with respect to remedial measures
to control and mitigate the environmental pollution may be realized from the
persons responsible and the person in charge of the place of occurrence.
1.3.5
Under s.12 of
BECA, 1995
no industrial unit or project shall be established or undertaken without
obtaining, in the manner prescribed by Rules, an Environmental Clearance
Certificate from the Director General of
Department of Environment.
1.3.6 Under s.15 of
BECA, 1995
imprisonment not exceeding 10 years or fine not exceeding 10 lac taka or both
for
violation of a direction issued under sub-section (2) or (3) of section 4,
imprisonment not exceeding 10 years or fine not exceeding 10 lac taka or both
for manufacturing, importing, marketing prohibited article under section 6A;
imprisonment not exceeding 6 months or fine not exceeding 10 thousand taka or
both for selling, exhibiting for sale, stocking, distributing, commercially
transporting or commercially using prohibited article under section
6A may be imposed.
1.3.7 BECA, 1995 has
been amended in 2000, by which certain penal provisions are amended. Under the
said amendment, the Director General may file suit for damages in representative
capacity on behalf of a person or class of persons who are affected by
pollution. Under this Act Government of Bangladesh is empowered to make Rules by
notification in the Official Gazette without prejudice to the generality of the
power on the standards for air, water, noise and soil for different areas and
different purposes.
1.4
The Environment Conservation Rules, 1997 [ECR, 1997]
1.4.1 Under Rule 7 of
ECR, 1997
for
the purpose of issuance of Environmental Clearance Certificate, the industrial
units and projects shall, in consideration of their site and impact on the
environment, be classified into the following four categories:-
(a) Green;
(b)
(c)
(d) Red.
1.4.2 Under Schedule 1
of
ECR, 1997 ship-breaking
industries are classified under ORANGE-B Category and asbestos
industries are classified under RED Category.
1.4.3
Under Rule 7(3)
and (4)
of
ECR, 1997
Environmental Clearance Certificate shall be issued for three years to all
existing and proposed industrial units and projects falling in the Green
Category. For all existing and proposed industrial units and projects falling in
the
1.4.4
Under Rule 7(6)
of
ECR 1997
the following documents shall be attached with an application made for
Environmental Clearance Certificate:-
For
(i) report on the feasibility of
the industrial unit or project (applicable only for proposed industrial unit or
project);
(ii) report on the Initial Environmental Examination of the industrial unit or
project, and also the process flow diagram, Layout Plan (showing location of
Effluent Treatment Plant), design of the Effluent Treatment Plant (ETP) of the
unit or project (these are applicable only for a proposed industrial unit or
project);
(iii) report on the Environmental Management Plan (EMP) for the industrial unit
or project, and also the Process Flow Diagram, Layout Plan (showing location of
Effluent Treatment Plant), design of the Effluent Treatment Plant and
information about the effectiveness of the ETP of the unit or project, (these
are applicable only for an existing industrial unit or project);
(iv) no objection certificate from the local authority;
(v) emergency plan relating adverse environmental impact and plan for mitigation
of the effect of pollution;
(vi) outline of the relocation, rehabilitation plan (where applicable);
(vii) other necessary information (where applicable).
For Red Category:
(i) report on the feasibility of the
industrial unit or project (applicable only for proposed industrial unit or
project);
(ii) report on the Initial Environmental Examination (IEE) relating to the
industrial unit or project, and also the terms of reference for the
Environmental Impact Assessment of the unit or the project and its Process Flow
Diagram; or Environmental Impact Assessment report prepared on the basis of
terms of reference previously approved by the Department of Environment, along
with the Layout Plan (showing location of Effluent Treatment Plant), Process
Flow Diagram, design and time schedule of the Effluent Treatment Plant of the
unit or project, (these are applicable only for a proposed industrial unit or
project);
(iii) report on the Environmental Management Plan (EMP) for the industrial unit
or project, and also the Process Flow Diagram, Layout Plan (showing location of
Effluent Treatment Plant), design and information about the effectiveness of the
Effluent Treatment Plan of the unit or project (these are applicable only for an
existing industrial unit or project);
(iv) no objection certificate of the local authority:
(v) emergency plan relating adverse environmental impact and plan for mitigation
of the effect of pollution;
(vi) outline of relocation, rehabilitation plan (where applicable);
(vii) other necessary information (where applicable).
1.5
The Environment Court Act, 2000 [ECA 2000]
1.5.1 The Environmental
Court Act, 2000 has been enacted for trial of the offences committed under the
Environmental laws. Two Environmental Courts have already been established in
Dhaka and
2.
LAWS RELATING TO OCCUPATIONAL HEALTH
2.1
The Factories Act, 1965 [FA, 1965] and the Factories Rules, 1979 [FR,
1979]
2.1.1 The Factories Act,
1965
is the re-enactment, with necessary amendments, of the Factories Act 1934. FA,
1965
regulates working conditions particularly
relating to health, safety and welfare of workmen employed
in factories and for matters connected
therewith.
Under section 87 of
FA, 1965 the Government
may, if it is
satisfied that any
operation carried on in a factory exposes
any person employed in it to a serious
risk
of bodily injury, poisoning, or disease,
make rules applicable to such factory
or class of factories in which such
operation is carried on, inter alia,
specifying the operation and
declaring it to be hazardous and
providing for the protection of all persons employed in the operation or in the
vicinity of the places where
it is carried on; and use of any specified material or
processes in connection with the operation.
Under rule 83 of FR 1979 a list of operations are considered to be dangerous
operation for the purpose of s.87 of FA 1965 but, operation involving asbestos
or asbestos related material is not listed as dangerous operation.
2.1.2
Under section 90 of
FA, 1965 and rule 89 of FR 1979
the manager of a Factory is required to report to the Chief Inspector of
Factories as to any worker being contracted any diseases specified in Schedule
to the FA, 1965. Under section 90 of FA, 1965 Government may appoint competent
person to inquire into such matters for taking appropriate remedial measures.
None of the listed diseases in the Schedule to the FA, 1965 is related to the
exposure of asbestos.
2.1.3 Under rule 83 of
FR, 1979 no
building, wall, chimney, bridge, tunnel,
road, gallery, stairway, ramp, floor, platform, staging, or other structure,
whether
of a permanent or temporary character, shall be constructed, situated or
maintained
in
any factory in such a manners to cause risk of bodily injury.
2.2
Workmen's Compensation Act, 1923
[WCA 1923]
2.2.1
WCA, 1923 was enacted to
provide for the payment of compensation
by certain classes of employers to their
workmen for injury by accident. Under
s.3(1) of WCA, 1923 if
personal injury is caused to a workman by accident arising out of and
in the course of his employment, his employer shall
be liable to pay compensation.
2.2.2 Under s.3(2) of
WCA, 1923 if a workman, whilst
in the service of an
employer in whose service he has been employed for a continuous period of
not less than six months in
any employment specified in Part B of Schedule III,
contracts any disease
specified therein as an occupational disease peculiar to
that employment, the
contracting of the disease shall be deemed to be an injury by accident within
the meaning of this section and, unless the employer proves
the contrary, the accident shall be deemed to have
arisen out of and in the course of the
employment. Under Part B of Schedule III of WCA, 1923 ‘Asbestosis’
is classified as an
occupational disease peculiar to the
employment in –
(a)
the production of-
(i)
fibre cement materials; or
(ii)
asbestos mill board
(b) the processing of ores
containing asbestos.
2.3
Penal Code 1860
2.3.1 Under section 278
of the Penal Code, 1860 it is an offence
punishable with fine if anyone
voluntarily vitiates the atmosphere in any
place so as to make it noxious to the
health of persons in general dwelling or
carrying on business in the neighbourhood or passing along a public way.
3.
THE NATIONAL BUILDING CODE, 1993
3.1
Legislative measure, rules and practices for controlling building construction
are not comprehensive and need updating, rationalisation and unification. In
order to have a uniform standard covering all aspects of planning, design and
construction of buildings, including electrical, mechanical, sanitary and other
services which will be followed in the country the National Building Code is
prepared.
3.2 It
may be mentioned here that the Building Code is not an independent legislation
or Act, rather it is a national level approved document that shall form the
basis for standard of design, construction and maintenance of buildings. It has
been prepared in the light of internationally recognized standards of safety and
serviceability achievable by application of state-of-the-art technology within
the socio-economic context of
3.3
This document, the Bangladesh National Building Code, has been prepared in ten
distinct parts comprising different aspects of building construction and
services with cross references as necessary. Part 5 sets the standards of
materials to be used in building construction. Materials covered include all
types of common construction materials as well as some indigenous building
materials of the country. The requirements for materials provided in the
building code are based on specifications of established standards issued by
standards agencies. The agency responsible for issuing standards and ensuring
compliance with these standards in
4.
LAWS
AND POLICIES RELATING TO IMPORT OF ASBESTOS AND RELATED PRODUCTS
4.1
Import Policy Order, 2003-2006
4.1.1 In exercise of the
powers conferred by sub-section (1) of section 3 of the Imports & Export
(Control) Act, 1950 (XXXIX of 1950),
Import Policy Order for year of 2003-2006 was formulated.
Major policy
objectives are
to make the Import Policy Order further liberalized to keep pace with the
gradual development of globalization and free market economy under the W.T.O.
and to make easier the availability of industrial raw materials for increasing
competition.
4.1.2 In the
Import Policy Order, certain
specified items are banned for import. In addition, certain specified items
listed in Annexure I of the
Import Policy Order are classified as
controlled items and importable on fulfilment of certain conditions. Those items
which are not appear either in the restricted list or controlled items’ list
shall be freely importable. Neither asbestos nor asbestos related products are
banned or controlled under the Import Policy Order. Tariffs for articles of
asbestos or similar materials are listed in ‘Schedule III’ below