Alternative Law Journal
|
|
Home
| Databases
| WorldLII
| Search
| Feedback
Alternative Law Journal |
|
Kampung Baru Kuala Kuang is a village in Chemor in the state of Perak, Malaysia. This Chinese new village has been in existence since the 1940s. At that time, the British Government resettled communities during the communist insurgence period to prevent these communities from having any dealings, activities or communication with communist guerrillas in then Malaya. Following independence, the Malaysian Government began issuing land titles to the residents. The village was also provided with all the necessary basic facilities such as a school, community hall and temple by the Malaysian Government. The village comprises about 650 households with a total population of about 6000 people, where the majority depends on fanming as a source of income.
The residents of this village have been battling long-term exposure to hydrogen sulphide emitted by a factory involved in the manufacturing and processing of rubber. The factory is adjacent to the village and is only 3 metres away from the nearest house. This factory began on a small scale in 1979 on its present site and gradually expanded into large scale operations in or around 1995.
It was around 1995 that the residents began experiencing unbearable bad odours stemming from the emissions of chemicals, gases and substances from the factory's operations. Among the gases released were hydrogen sulphide, a toxic gas known to cause odours, especially at very low doses, as well as having adverse health impacts on people exposed to its release. The odour is offensive and smells like rotten eggs.
As a result of the exposure to these chemicals, gases and substances, and especially because of the very bad odours, residents have been suffering tremendous discomfort, annoyance and inconvenience. They have been unable to live in their houses or entertain friends; they suffer from loss of appetite, fatigue, nausea, respiratory ailments and other illnesses. It has not been possible for them to have the peaceful use and enjoyment of their property and environment they are entitled to as residents. As a result of respiratory ailments, many of them have also been suffering from ill health and their quality of life has been gravely impaired.
In light of the problems faced, the villagers organised themselves and fonmed a committee known as the Anti-Bad Odour Committee Jawatankuasa Anti-Bau Busuk) ('the committee') in or around 1995. Through this committee, the villagers made numerous representations to the Government, state assemblymen and women, and non-government organisations (NGOs) to resolve their plight.
Sometime in 1999 a meeting between committee members, the representatives of the factory and the State Government of Perak was held. After tremendous pressure from the people of Chemor, the State Government offered the factory 25 acres of land elsewhere so they could relocate. The State Government also gave the factory a period of grace of two years to move their operations to the newly allocated land. Although the residents were unhappy with the State Government's decision to give the factory a period of grace of two years, they abided by the decision and allowed the factory to make necessary arrangements for moving within the two-year period.
Two years came and went and the factory had still not moved, and continued to emit the bad odour. The residents protested further with the State Government of Perak because the factory had not honoured the agreement of 1999. Much to their chagrin, the residents found out that the factory only needed to relocate two years after the building plans for the new site has been approved by the local authority.
Disappointed and angry, the committee brought their plight to the Consumers' Association of Penang (CAP) in 2002 after they found that the only other way to shut the factory down would be to bring a court action.
In 2003, a representative action in nuisance in defence of the residents' fundamental rights under the Federal Constitution of Malaysia was filed against the factory. The action comprised seven residents and they sued the factory on behalf of themselves and the other villagers.
In their claim, the residents stated that the factory had by its activities caused to issue from its lands dangerous, offensive, noxious and unwholesome chemicals, emissions, substances, gases and odours which have polluted the air and the surroundings. The residents also asserted that they had suffered and continued to suffer from adverse health impacts, discomfort, annoyance and inconvenience. They asked for an injunction to restrain the factory from continuing to cause the nuisance.
The factory in its defence, while admitting to the emission of hydrogen sulphide, claimed that the emissions did not cause any of the problems alleged by the residents.
The committee was very well-organised, making the task of working with them easy. The collecting of evidence, interviewing residents, conducting medical examinations and testing the air quality was a collective effort between the residents through their committee, and Alaigal (a Perak-based NGO), the lawyers and the medical and science experts from Malaysia, USA, India and Thailand.
During their fight against the factory, some of the committee members were charged in court under s 27 of the Police Act 1967 of Malaysia for illegal assembly when they held a peaceful demonstration to get some attention from the authorities about the odour problem. This would be a deprivation of their fundamental right under Article 10 of the Federal Constitution of Malaysia which allows peaceful assembly without arms.
However, they had not successfully obtained a permit from the police under the Police Act 1967 because police permits for large gatherings or demonstrations are very difficult to obtain in Malaysia. Their case is currently pending in court.
As well, the residents' cause has been repeatedly highlighted in the media. This is the first time the experience of a community with long-term exposure to hydrogen sulphide poisoning is being documented thoroughly for the purpose of setting ambient air quality standards in the country. As a result of the exposure to hydrogen sulphide, CAP's medical expert found a high incidence of nasal cancer, frequent flu and cough, eye irritation, itchiness, headaches and depression among residents of the community. A check on the Internet failed to find any other community where long-term exposure to hydrogen sulphide hasbeen researched and documented.
The factory has indicated since 2000 that it intends to relocate. However, not until 2003 after the case was filed did it make a concerted effort to move its operations elsewhere.
After a protracted battle the residents of Kampung Baru Kuala Kuang in Chemor, Perak signed a settlement agreement with the company. Among other things, the factory agreed to fully relocate its operations to a new site on or before 30 March 2005, failing which it will cease rubber processing operations at its existing site near Kampung Baru Kuala Kuang. It has not yet relocated.
Pending relocation to its new site, the factory also agreed to use formic acid instead of sulphuric acid (the main agent which caused the release of the hydrogen sulphide) in its operations within 21 days from the execution of the agreement
As a further measure to reduce the presence of hydrogen sulphide, the factory agreed to add a proper quantity of a hydrogen sulphide consuming bacteria to its anaerobic ponds or effluent process to convert dissolved sulphide into a non odorous form. Alternatively, the company could use other masking or odour-removing agents, provided that the addition of such chemicals or agents will not be disruptive to the factory's effluent treatment system. The company also agreed to purchase a handheld gas meter together with a special applicator for hydrogen sulphide detection and to make them available to the Malaysian Department of Environment which will C:onduct regular tests.
Within 90 days after the company moves out it has agreed to fill up the open ponds at its existing site and cover them with a layer of fertile topsoil to enable growth of vegetation, and also to permanently cover or remove all waste piles including sludge from the anaerobic ponds.
After a long and arduous struggle the people of Chemor may finally enjoy a breath of fresh air. However, the battle does not just end here. Currently, environmental legislation, namely the Clean Air Regulations, does not provide for ambient air standards for chemicals.
During the aborted proceedings for the hearing of the application for an injunction for this case, the medical and science experts relied on World Health Organisation (WHO) standards to illustrate safe emission standards. The level of hydrogen sulphide emitted at Chemor was at least 48 times higher than the WHO standard and 170 times higher than the US EPA standard.
Although rubber factories in the country are slowly declining and are being replaced with palm oil manufacturing plants, the residents of Chemor are but one group of people affected by hydrogen sulphide poisoning. There are still many other communities in Malaysia who continue to suffer in silence as a result of being poisoned by noxious substances. It is time the newly formed Malaysian Ministry of Natural Resources and Environment formulated ambient air standards for some of these poisonous chemicals like hydrogen sulphide in line with established international standards.
THEIVANAI AMARTHALINGAM is Legal Adviser with Consumers' Association of Penang and Sahabat Alam Malaysia, Malaysia.
© 2004 Theivanai Amarthalingam email: theira@streamyx.com
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/journals/AltLawJl/2004/75.html