The Vizag gas leak is the latest of Industrial Disasters in the country. The case again shows to prove how a combination of Negligence and lack of Environmental Clearances are still the norm for hazardous industries in the country.
By: Vaibhav Chaturvedi
On the early morning of 7th May, Styrene gas was leaked from the LG Polymers chemical plant in R. R. Venkatapuram village near Gopalapatnam, on the outskirts of Visakhapatnam. The unfortunate incident cost the lives of 11 people around the area. Despite more than 3000 people evacuated by the National Disaster Management Authority (NDMA) to more secure areas, the toxic vapour made its way till 5 kilometres and affected 1000 people. Statistics show that the vapour leak has affected around 4000 people of the concerned area. Hours after the styrene gas leaking, scores of people could be seen lying unconscious on sidewalks, raising fears of a major industrial disaster.
The damage was caused by styrene, a carcinogenic chemical that can enter the human body through the skin, eyes, and predominantly through respiration. It gets absorbed into the blood mostly through the alveoli present in the lungs. The accumulation of styrene affects one’s health. It can particularly irritate eyes, cause hearing problems, damage the gastrointestinal tract and can even affect the central nervous system if subjected to chronic and longer exposures. (1)
The reaction from people has been a mix of fear and outrage. It has become difficult for the families and relatives of the affected people to commute amidst the lockdown. The range of this vapour knocked out a number of birds as well.
Chief Minister Y.S. Jaganmohan Reddy had ordered an immediate investigation and the National Human Rights Commission (NHRC) had also issued notices to the Centre and the Andhra Pradesh Government, seeking report on the leakage of styrene gas at an industrial unit in Vizag district. Since then, the Andhra Pradesh High Court has ordered the Government to seize the company premises of the LG Polymers chemical plant at Vishakapatnam.
South Korean firm LG Chem, which operates the plant, said it was cooperating with Indian authorities to help residents and employees. (2) A technical expert member of the internal committee headed by the director of factories and constituted by the government commented that “There are clear-cut safety protocols, maintenance guidelines, start-up and shut-down procedures, and it is an ISO-certified company. Even when it was under the UB Group it had strict safety guidelines. Once the LG Group took over, the safety mechanism was made more stringent. I have never seen such accidents in a styrene plant” (3). However, he added that the leak may have happened due to the release of excess heat following auto polymerisation.
LG is still somewhat clueless and is attributing the tragedy to a ‘technical glitch’. The glitch took place with respect to the temperature and the container could not bear the pressure, leading to the leakage.
The incident has three legal sub issues to it; Environmental, Criminal and that of Torts.
- Environmental Concern:
LG Chem spokesman Choi Sang-kyu told The Associated Press that the company had always followed Indian law and had operated the plant based on the guidance of Indian officials, both at the state and federal level. (4) However, facts of the case concerning the environmental purview contradict Mr. Choi’s statement. After the National Green Tribunal (NGT) took suo motu cognisance of the matter: it formed a committee under a retired judge of the Andhra Pradesh high court to inspect the site and determine the cause of the incident, the damage caused to life, environment and health, and steps to compensate victims. The NGT also asked LG Polymers to deposit an amount of Rs 50 crore with the collector, which was determined after factoring in the company’s financial worth and the extent of damage.
Recent thread to case tells us that LG did not have federal clearance that every company was supposed to get, after every time they expanded. LG expanded their operations 5 times from 2006 to 2018 and never got a ‘federal environmental clearance’. They however, have shifted the burden on the State by stating that they were never asked to stop the operations.
In 2018, when LG Polymers wanted to expand its manufacturing capacity of polystyrene, a plastic used to make bottles and lids, the company finally applied for its first environmental clearance, documents show. The Environment Ministry flagged the application for review, noting that the company didn’t have a clearance for the chemicals it was already manufacturing. (5) Consequently, the National Green Tribunal has asked the company to pay a $6.6 Million penalty.
- Criminal Angle:
The Police have filed a case of Culpable Homicide and Negligence in handling toxic substances. Since the investigation till date has shown no signs of ‘intentional’ leakage, the ground of culpable homicide should have been the ‘knowledge of consequences’. However, the immediate concern of the authorities is to compensate the victims and their families. To look into the criminal purview, even from the angle of negligence, the complete investigation will take a certain amount of time.
- Strict Liability v. Absolute Liability
The NGT order said that “Leakage of hazardous gas at such a scale adversely affecting public health and environment, clearly attracts the principle of ‘Strict Liability’ against the enterprise engaged in hazardous or inherently dangerous industry.” The rule of strict liability, which has been applied around the world in both civil and criminal law, first evolved in the 1868 British case of Rylands vs Fletcher. (6) The case enumerated the principle of strict liability as a person who brings on to her land anything likely to cause harm is liable to pay compensation when the thing escapes and causes harm. She is liable only when there is non-natural use of land; the principle also restricts liability when the escape is due to an act of strangers, of god, due to the person injured, when it happens with the consent of the person injured or with statutory authority.
However, the Vizag case is constantly being compared with the Bhopal Gas Tragedy, where Absolute Liability became the landmark rule to such cases. The rule of Absolute Liability on the contrary provides no defences and holds the hazardous industries absolutely liable. The Constitution Bench, led by then Chief Justice PN Bhagwati in the Bhopal Gas Tragedy case, (7) stated that the need for this new principle of liability was felt to deal with hazardous or inherently dangerous industries which are concomitant to an industrial economy. The rule was first laid down in the case of M.C. Mehta v. Union of India & Ors, (8) and reaffirmed in the case of Charan Lal Sahu v Union of India, (9) where the constitutionality of the Bhopal Gas Disaster (Processing of Claims) Act, 1985, had been challenged. It is since then, that the rule of absolute liability is applied in cases where the environment is harmed and their loss of human lives.
Now, styrene gas is a ‘hazardous chemical’ under Rule 2(e) plus Entry 583 of Schedule I of the Manufacture, Storage and Import of Hazardous Chemical Rules 1989. The rules also require on-site and off-site emergency plans to control damage. (10) So, it is clear from the facts that the case of absolute liability seems to be more articulate here.
After media pressure and mass protests, the loss is still being analysed. The families of innocent people who lost their lives should be the utmost priority of the state. The reason to deal the case under the ambit of strict or absolute liability is to pay out the compensation to the families of victims. Moreover, this payout should remain unaffected by the final orders of the court (if the court calls for further compensation).
The case is similar to what happened in Bhopal, hence absolute liability against the MNCs would perhaps be a better decision for future purposes as well.
The issue at hand will ultimately be concluded after the investigation, ordered. For now, the area has been made completely secure. The High Court of Andhra Pradesh after taking sum motu cognizance of the incident and also receiving multiple PILs has ordered Company Directors to remain in India. Further orders have also been passed by the High Court limiting the Company’s functioning.
Overall, what we derive from this, is the importance of federal environmental clearance and the state’s responsibility to look after its adherence. Secondly, the compensation should be immediate, either under the strict or absolute liability. Further, as was laid down in the case of M.C. Mehta v. Union of India & Ors, that MNCs, when they affect human lives and environment shall be dealt under ‘absolute liability’.
(1) Soundaram Ramanathan, Vizag gas leak: Styrene levels 500 times more on May 8: CSE Analysis, DOWN TO EARTH (9th May, 2020), https://www.downtoearth.org.in/news/health/vizag-gas-leak-styrene-levels-2-500-times-more-on-may-8-cse-analysis-71020.
(2) Vizag gas leak kills 11, over 1,000 affected, THE TRIBUNE (12th May, 2020) https://www.tribuneindia.com/news/nation/vizag-gas-leak-kills-11-over-1-000-affected-81566.
(3) G Janardhan Rao, Vizag gas leak a mystery, experts baffled, says ex-engineer at plant, THE NEW INDIAN EXPRESS (11th May, 2020), https://www.newindianexpress.com/states/andhra-pradesh/2020/may/11/vizag-gas-leak-a-mystery-experts-baffled-says-ex-engineer-at-plant-2141816.html.
(4) Indian LG plant lacked environmental clearance before leak, CNBC (12th May, 2020), https://www.cnbc.com/2020/05/13/indian-lg-plant-lacked-environmental-clearance-before-leak.html.
(5) Vizag gas leak: LG Chem plant operated with state permits since 1997 despite lacking environmental clearance from Centre, FIRSTPOST (13th May,2020), https://www.firstpost.com/india/vizag-gas-leak-lg-chem-plant-operated-with-state-permits-since-1997-despite-lacking-environmental-clearance-from-centre-8361931.html.
(6) L.R. 3 H.L. 330
(7) Union Carbide Corporation vs Union of India 1989 SCC (2) 540
(8) 1987 AIR 1086
(9) 1990 AIR 1480
(10) Amit Kumar, Vizag Gas Leak: Why the NGT Should Have Applied Absolute, Not Strict, Liability, THE WIRE (13th Mat, 2020) https://thewire.in/rights/vizag-gas-leak-ngt-strict-absolute-liability