This article is written by Parul Chaturvedi, from Dr R.M.L Law College, Bangalore. This article talks about the tragedy of a hazardous gas leak taking place in a chemical plant in Andhra Pradesh, Visakhapatnam which causes severe damage to the environment as well as human and animal life.
Table of Contents
Introduction
The world has been struggling due to COVID 19 outbreaks and lock-down misery. Whilst the nation was engaged in fighting corona viral concerns, India saw a horrific gas leak in LG polymer production near Andhra Pradesh, Visakhapatnam.
A major gas leak from a chemical plant in Andhra Pradesh’s Visakhapatnam occurred early on Thursday and spread rapidly to villages within a radius of five kilometres, killing thousands. There were children among the dead, too. A significant number of domestic animals, livestock, and plants have also been affected. Many of them collapsed to the ground as they tried to escape toxic vapors. Hours after the spill, unconscious lying on the sidewalks, near the ditches, and on the lane, hundreds of people could be seen raising fears of a major industrial catastrophe.
This article discusses applicable legal provisions under Indian Environmental Law Jurisprudence concerning jurisdiction, the presumption of liability, relief, and compensation. How did the gas leak in Vizag happen? What caused the industrial disaster which killed many people and affected thousands of people? How environmental disputes have been handled? What are the proper safeguards applied to get relief from these hazards? Remedies available and which is a better liability from these damages. This paper attempts to answer these questions.
Background
How environmental disputes have been handled
The court’s ability to handle environmental disputes has always been questioned.
The death toll from the accident could rise and many people are being treated at the Vizag Community Health Centre. The incident makes us hearten back to a similar Bhopal gas tragedy in 1984 that had taken a toll on many lives and disabled others. The case stubbornly influenced the country’s legislative machinery, which had no tough law on compensation. As the incident happened at an American company called Union Carbide Corporation, the families of victims and social activists filed a variety of lawsuits in the US. Eventually, India’s government, deriving authority from the Bhopal Gas Leak Disaster Processing Claims Act of 1985, instituted a case in the US against Union Carbide India Ltd. (hereinafter “UCIL”) as patriae parents (the country’s parent). The Indian government was unable to uphold its lawsuit and the Court ruled on the petition requesting that the Indian courts pass judgment.
This led to the development of demand for rapid environment dispute resolution alternative mechanisms. Shriram Foods Delhi, where a horrible incident of oleum gas leak arrested the life of an advocate. This case set the foundation stone of Absolute Liability, which is considered one of India’s greatest achievements in judicial activism. In the Oleum gas leak and Bhopal gas tragedy, in this case, the need was advocated for the Environment court 186th law Commission Report, it recommended setting up environmental courts with both original and appellate jurisdiction relating to environmental legislation. The passage of the National Green Tribunal Act, 2010 was passed to provide for the creation of the National Green Court. Who is competent in this matter? The answer lies in the National Green Tribunal Act, 2010 which gives the tribunal jurisdiction over all civil cases involving a substantial environmental issue.
What led to the VIZAG gas tragedy
Is styrene gas behind this VIZAG gas tragedy
What is styrene? How toxic is it
- The organic compound used in polymer/plastic/resin processing is styrene.
- The product is manufactured in petrochemical refineries.
- The substance is likely to be carcinogenic.
- It can react with airborne oxygen to mutate into the more lethal styrene dioxide.
- Styrene is classified as a ‘hazardous and toxic chemical’ according to India’s Manufacture, Storage, and Import of Hazardous Chemical Rules 1989.
- Acute (short-term) exposure– To styrene in humans results in mucous membrane and eye irritation and gastrointestinal effects.
- Chronic (long-term) exposure– Results in impacts on the central nervous system (CNS), leading to headaches, fatigue, weakness, depression, CSN dysfunction, hearing loss, and peripheral neuropathy.
- If the amount of styrene goes beyond 800 ppm, then the person exposed to it can go into a coma. The duration of the exposure and its relative concentration will determine toxicity.
- The 3 tonnes of the gas leaked from its storage tank and the feeding line.
How did the disaster take place? What was the cause
Styrene monomer was used to produce expandable plastics at the manufacturing plant. It should be held strictly at a temperature below 170℃. Due to the lockdown of Covid-19, there was a temporary partial shutdown of the plant, excluding maintenance activities in the plant, which were carried out according to a predetermined time frame.
In 2018, the factory submitted to the Union Ministry of Environment, Forest and Climate Change a Rs 168 crore proposal to expand its production capacity by another 250 tons per day (TPD) from the current 415 tpd. As we understand, this permission has recently been given.
- The problem started because of not getting styrene gas stored at the correct. temperature. This caused pressure in the storage chamber to build up, and caused the valve to break, resulting in gas leakage.
- The container used to store styrene gas was old and not kept properly.
- The gas was stored in two 5 metric tons total capacity tanks.
- This facilitie’s non-maintenance culminated in the leakage of 3 tons of styrene into the surrounding areas.
- Factory’s defunct VOC detection system has no monitoring mechanism installed specifically to detect styrene.
- The facility extends over 600 acres of land including nearby residential areas (it is spread over 231 acres according to the company’s terms of reference submitted in 2018).
- The impact zone was within 2-3 km of range.
- There is a nearby village and residential areas surround the plant, resulting in a higher exposure rate.
Treatment
The most significant immediate care is for infected people to be given oxygen. The people in the area also need to be evacuated, as long-term exposure will affect their health.
What are the safeguards against chemical disasters in India
Provision for storing chemicals at plants:
- Bhopal Gas Leak (Processing of Claims) Act, 1985, which gives the Central Government powers to secure claims arising from or linked to the Bhopal gas tragedy. Those claims are dealt with promptly and reasonably under the provisions of this Act.
- Post-Bhopal gas tragedy, clear guidelines for the storage of hazardous chemicals at plants have been issued. Following the Bhopal disaster, several legislations were enacted, beginning with the Environmental Protection Act, 1986, to the Public Liability Insurance Act, 1991.
- The Manufacture, Storage, and Import of Hazardous Chemical Rules, 1989, styrene are classified as a ‘hazardous and Environment (Protection) Rules, 1986 rules say: “Set discharge and safety standards-pollution-restricting source standards; manufactured products product standards and ambient air and water standards-to govern the quality of life and environmental protection.”
- Hazardous Waste (management, handling, and trans-boundary movement) Rules, 1989 says, “Industry needed to recognise major accident hazards, take preventive measures and submit a report to the authorities appointed.”
- Manufacture, Storage, and Import of Hazardous Chemicals Rules, 1989: “ Importers must provide the competent authority with complete product safety information and must transport imported chemicals as per the amended rules.”
- Factories Amendment Act, 1987: “Provision to monitor the location of dangerous units; health of staff and residents nearby; and regulations for emergency plans at the site and steps to manage disasters.”
- Public Liability Insurance Act, 1991: “Imposes a no-fault responsibility on the manufacturer of the hazardous substance and allows the owner to compensate accident victims regardless of any negligence or default. To this end, the owner must take out an insurance policy covering potential responsibility for any incident.”
- Chemical Accidents (Emergency, Planning, Preparedness, and Response) Rules, 1996: “Centre is required to form a central crisis group for chemical accident management; establish a rapid response mechanism called a crisis alert system. Each State must establish a crisis group and report on its work.”
- The National Environment Appellate Authority Act, 1997, in which the National Environment Appellate Authority can hear appeals concerning the restriction of areas in which industries, operations or processes or groups of industries, operations or processes are not carried out or under other protections under the Environmental Protection Act, 1986.
- National Green Tribunal, 2010, provides for the creation of a National Green Tribunal for the successful and swift disposal of cases relating to the protection of the environment and forest conservation.
According to PRS Legislative, any accident such as the Bhopal gas tragedy will be tried in the National Green Tribunal and most likely in compliance with the 1986 Environment Protection Act provisions. “If an offence is committed by a corporation, any person directly responsible and liable shall be considered guilty unless he proves that the offence has been committed without his knowledge or that he has exercised all due diligence to prevent such an offence from being committed,” says PRS.
Identifying health hazards
How to find the effect of styrene on human health
- Firstly, it depends upon the length of exposure.
- Secondly, the exposed population developed acute symptoms. The long-term consequences of exposure are yet to be determined.
Test Conducted on: The CSIR-NEERI (National Environmental Engineering Research Institute), Nagpur, which conducted its preliminary assessment of the plant and nearby villages, said it would continue the area’s long-term study to assess the effect of gas on the environment. The organisation’s department took samples of soil, water, and air for the analysis.
- Samples were taken.
- Styrene usually becomes inert followed by long air exposure.
- Styrene reached the plants, soil, water, and food and could be poisonous.
- Precautions are taken: By making people aware not to drink water from open surfaces and gas-exposed foods/vegetables, “CSIR-NEERI director Rakesh Kumar, Nagpur told Mongabay-India. “This was our preliminary valuation. By conducting a long-term study to analyze the gas’s long-term impact on the local environment and population.
- Styrene is a carcinogen: The International Cancer Research Agency associated with the World Health Organization (WHO) has recently reported by Raghunanda Rao, a veteran oncologist and founder of the Homi Bhabha Cancer Centre, Vizag, told Mongabay-India a short-term exposure has a short-term effect, although the Andhra Medical College neurology department has confirmed that many of the exposed populations are still complaining about guiltiness after a week of the incident.” He noted that a long study was necessary to assess if the incident affected pregnant women and their embryos.
Provision regarding hazardous chemicals
Under rule 2(e) read with entry 583 of schedule 1 to the Manufacture, Storage and Import of Hazardous chemical rules, 1989. This rule has been promulgated under the Environment Protection Act, 1986 which is one of the seven enactments specified in Schedule I of the National Green Tribunal Act, 2010.
National Green Tribunal Act, 2020 also bars the jurisdiction of a civil court to settle any question relating to any claim which may be adjudicated upon by the tribunal. The Supreme Court recognized that the tribunal is only the first court of law. Thus, the National Green Tribunal has exclusive jurisdiction over LG polymer gas leak and other environmental disputes.
Rules regarding environment protection
Although the South Korean subsidiary in their statement claimed to have been following international standards on safety,
- The accident has raised questions over lack of compliance with the Standard Operating Protocol (SOP),
- Mismanagement in the handling of the hazardous chemical,
- Lack of onsite and offsite emergency plans to control the after-effects of the accident.
The LG Polymers plant has been operating without a valid environment clearance under the provisions of Environment Impact Assessment (EIA) notification 2006. It only had consent for establishment and consent for operation from the Andhra Pradesh Pollution Control Board (APPCB). The region has witnessed a high growth of industries.
What next for errant LG plants
LG Polymers has been booked under several sections of the Indian Penal Code:
- Negligence
- Causing hurt and
- Endangering the life of others
- Culpable homicide not amounting to murder.
Suo-Motu cognizance of the case:
- The Andhra Pradesh High Court
- The National Human Rights Commission (NHRC)
- The National Green Tribunal (NGT)
All three have taken Suo-motu cognizance of the case. The NGT has constituted a special committee to inquire into the matter in addition to imposing a penalty of Rs 50 crore (Rs 500 million) on LG Polymers.
The National Green Tribunal (NGT) applied the principle of “Strict Liability” instead of “Absolute liability” which would have been more appropriate, we can check it out here by distinguishing both two.
Remedies or Liabilities
Difference between Strict liability and Absolute liability
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Strict liability |
Absolute liability/ No-fault liability |
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Principle: Evolved in the year 1868, in the case Rylands v Fletcher. Any person who indulges in “non-natural” use of land and who keeps hazardous substances on his premises, will be held strictly liable if such substances escape the premises and cause any damage. |
Principle: an enterprise engaged in the hazardous or inherently dangerous industry which poses a potential threat to the health and safety of the persons working in the factory and residing in the surrounding areas owes an absolute and non-delegable duty to the community to ensure that no harm results to anyone on account of hazardous or inherently dangerous activity taken. |
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Exception from liability if such damage caused in case: 1) Plaintiff’s fault 2) An act of God 3) Act of a third party 4) If the hazardous activity was being carried out with the consent of the plaintiff. |
There is no exception to industries involved in hazardous activities and they are liable for damage so caused, despite observance of due diligence. |
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Woefully inadequate to protect citizens rights in an industrialized economy. |
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Compensatory damages |
Exemplary damages |
Tort of absolute liability
Definition of Tort: In India, torts is an uncodified law that generally follows the interpretations of common law on the subject. English law has a popular principle of strict liability laid down in the Rylands v. Fletcher case for damage caused by industrial accidents.
Rylands v. Fletcher doctrine says that “If any person brings something dangerous to his land for his purpose that is likely to cause misfortune if escaping must keep it at his peril”. The principle laid down in 1868 requires certain criteria to be fulfilled before carrying out, they are:
- The thing must be dangerous.
- There must be a non-natural use of land.
- The thing must escape.
- Damage or Mischief must be caused.
The Strict liability principle provides for certain exceptions, like,
- Act of God
- An act of the third party
- Consent of the injured
- Statutory authority
- The default of the person injured.
Supreme Court held:
Both UCIL and Shriram Foods had circumvented the liability for reasons such as the natural use of land, the act of god, or the act of an alien. The Supreme Court had chosen to offer the “full justice” to labourers who lost their lives as only a prominent innovation could have been made possible. The Supreme Court acknowledged the same in the case of oleum gas (M.C Mehta v. UOI) and described Strict Liability as an outmoded doctrine that was developed when the “science and technology advances had not existed” and had little relevance to the present times. The court said, “Law must evolve to meet the needs of the rapidly evolving society and keep up with the country’s economic developments.” “No law can Continue to statics.”
According to Article 32 of the Indian Constitution, the Supreme Court had invoked its power to formulate any method appropriate for the particular purpose of the proceedings and to ensure the protection of fundamental rights. The court disagreed with English law and supported the Absolute Liability doctrine arguing that “it must draw on its jurisprudence.”
Absolute liability explores that if an industry or enterprise engages in some inherently dangerous activity from which it derives commercial gain and this activity is capable of causing catastrophic damage, then the officials of the industry are liable to pay compensation to the parties concerned. The industry cannot plead that they have taken care of all safety measures and that negligence has occurred on their part. They will not be permitted any exceptions nor can they take any defence such as ‘Act of God’ or ‘Act of a Foreigner.’
There are only 2 specifications.
- Initially, the defendant has to engage in a hazardous activity and due to this inherently dangerous pursuit, the plaintiff has suffered an injury.
- Secondly, the company itself has the means to identify and protect against the risks. It expressly nullifies the use of all the Strict Liability exceptions. It is a no-exceptions liability.
Vizag tragedy is a reflector of Bhopal tragedy
The NGT has made Strict Liability applicable. As an initial fee, NGT awarded Rs.50 Crore. It has also established an expert committee for the overall review and submission of the report. While the damages can increase, the application of outmoded Strict Liability is met with anxieties in legal parlance. The problem argues that if the accident met the requirements of Absolute Liability, why did the NGT invoke an outdated statute.
Strict responsibility has several additional chasms, such as the one surrounding monetary reimbursement. While Strict Liability calls for compensatory damages, Absolute Liability mandates exemplary damages which means a monetary reparation much more than the damage done. Thus, Absolute Liability acts as a dissuasion.
The Supreme Court had directed the UCIL to pay USD 470 million (Rs. 750 crores) in the Bhopal Gas Tragedy, the highest in Indian history. In Klaus Mittelbachert v. East India Hotels Ltd., a German co-pilot who was amputated and died while swimming in an ill-maintained swimming pool at a Delhi hotel was granted exemplary damages by the court. The rule is followed by M.P High Court in Jagdish v. Naresh, where the court applied M.C Mehta and granted exemplary damages even if it admitted negligence.
Conclusion
The centre may decide to act as a representative of the victims especially in the LG polymers gas tragedy as done in the Bhopal gas tragedy, such as Union Carbide, which is owned by the foreign firm, as compensation and prosecution logistics are more difficult for foreign companies. The concept of Absolute liability which, in addition to public liability insurance, is also implemented into the regulatory system would mean that a substantial amount of money would have to be paid to the victims. Exemplary damage beyond and beyond costs may occur when LG polymers violate the Environmental Protection Act 1986 and the Manufacture, Import, storage of Hazardous Chemical Rules, 1989. LG Polymers controversy is no stranger. A reactor blast shook the surrounding villages in the year 2000, fueling their anxiety. People ran away, and there were no lives lost. One such attempt is the Cartagena Protocol to hold operators accountable for damage from the forthcoming threat as well as from real threats arising from the use of new technology. In 2017, villagers made representation through Rajya Sabha MP Subbarami Reddy, after repeated complaints to the Andhra Pradesh Pollution Control Board failed to provoke any reaction. “Predictably the PCB arrived, inspected, and gave LG (Polymers) a clean chit.” Coming as it does at a time when labour and environmental laws are being diluted for the convenience of doing business, the Vizag disaster should teach us that more democracy, more public participation, and more security for workers are the only way to make businesses truant.
Bhopal should have been the driving force behind this counter-globalization, and Vizag is shameful in building collective guilt. If we fail to learn our lessons from the never-ending misery of Bhopal.
References
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