Doctrine of absolute liability: Vizag gas leak angle

Reading time: 8-10 minutes.

Adisastrous, ill-fated, inadvertent leakage of styrene gas at 3 am on 7th of May, killed 11, critically injuring 25, with over 200 being hospitalized and more than 1000 falling ill. A chemical gas leak at a plastic plant ‘LG Polymers’ in Vishakhapatnam’s RR Venkatapuram village in Andhra Pradesh raised raging trepidations and immediate disquiet that this might be a recurrence of the Bhopal Gas Tragedy of 1984 for its uncanny parallels. Even though the leak of styrene gas proved to be less hazardous than the Union Carbide Factory, it still caused a mass disorder and havoc in the region. India follows a rigorous degree and standard of liability for cases arising out of hazardous industrious leaks that cause harm to the people, such as the LG Polymers leak.

Foreign Company LG Group from South Korea is the parent company of LG Polymers from Visakhapatnam. The plant was situated amidst a residential area. The officials from LG Polymers have claimed that the gas leak is not toxic and hazardous. However, it is essential to understand the brevity of the effects styrene brings with it, irrespective of the death it has brought. Even though the gas looks harmless, it can cause rapid Central Nervous System depression and knock the victim to coma.

The flammable gas is colourless with a light yellow tint, primarily used in the production of plastic and resin. Breathing-in a styrene infected atmosphere can cause infection of the respiratory tract, which might build-up fluid in the lungs, leading to styrene sickness. Several epidemiologic readings suggest there may be an association between styrene exposure and an increased risk of leukaemia and lymphoma though the evidence is inconclusive. Just like methyl isocyanate in Bhopal, styrene causes long term damage to one’s foetus, and it is a human carcinogen, causing chromosomal aberration.

What is Absolute Liability?

Rapid and unprecedented industrial development has brought in its wake myriad pernicious health problems. The enterprises are social units with rights and duties towards the public and holds responsibility not to harm the health of man and nature. They have an “absolute non-delegable duty” to the community.In Hoy v. Miller, Justice Golden defined Absolute Liability with precision, ‘absolute liability is a liability without fault – a liability for which there is no excuse’.

Absolute liability is a tortuous element. This principle upholds the duty of care owed to the public by enterprises that produce or use hazardous substances. Any establishment that is occupied with production and use of harmful substances must ensure that no harm is done to the residents of that area. If anyone is harmed, then the establishment is absolutely liable,and no defence or exception can relieve them from such liability. Defence such as negligence, fault, Act of God, mistake, or any other cannot be applied to seek exemption from the compensation and liability.

In India, the principle of Absolute Liability is an inalienable part of Article 21 of the Indian Constitution, and NGT Act 2010, under Section 17, incorporated the no-fault law. 

Essentials

  1. Hazardous Element:Hazardous and Ultra Hazardous elements are a pre-requisite for the application of Absolute Liability. Only when the element dangerous to one’s health and the environment is putting lives at risk, this principle can be applied. Elements like toxic gas, vibrations, explosives, etc. are examples of hazardous elements.
  2. Escape of element not necessary:Unlike Strict Liability, escape of the element is not required; the rule will apply to those injured within and outside the premise.
  3. No defense: No kind of exception can be given to cases that fall under the purview of Absolute Liability—exceptions like negligence, fault, Act of God, Act of a stranger, etc. The enterprises will be absolutely liable.
  4. Natural and Non Natural use of land: Unlike Strict Liability, this principle applies to cases emerging out of the use of non-natural as well as natural properties.
  5. The number of deaths is not relevant: For assessing the extent of liability and compensation to be paid, the number of deaths is irrelevant.

Evolution of this concept

Intending to maximize the limits and degree of the rule of strict liability as laid down by Justice Blackburn in Ryland v. Fletcher, the Indian Judiciary decided to follow the highest standard of responsibility for an incident such as this. Therefore, deciding to modify and amend the 19th Century Principle.

The Principle of Absolute Liability was primarily formulated and verbalized in M. C. Mehta v. Union of Indiain 1986 and later was developed in the Bhopal Gas Tragedy case.

M. C. Mehta v. Union of India:

In the year 1985, Oleum Gas leaked from Shriram Foods and Fertilizers Industries, Delhi, killing one and injuring several. The judges refused to apply the principle of Strict Liability and rendered it obsolete because it is ‘woefully inadequate’ to protect the rights of the citizens.  Thus an innovative remedy was evolved by the Supreme Court, which was indirect recognition and application of the ‘polluter pays principle’. Absolute liability was thus articulated. The Court also made the measure of accountability compatible with the capacity of the enterprise. This pronouncement was later upheld in Charan Lal Sahu v. Union of India.

Justice P. N. Bhagwati meticulously observed; “We are of the view that an enterprise which is engaged in a 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 the hazardous or inherently dangerous nature of the activity which it has undertaken.”

Union Carbide Corporation (UCC) v. Union of India

In 1984, before the leak in Delhi, Methyl Isocyanate or MIC leaked from the UCC Unit in Bhopal. Over three thousand people lost their lives, and even after 36 years, the effects of the leak can be seen in deformed foetuses and retardation in the mental capacity of the victim residents. The Bhopal tragedy has amplified Indian and world perception of the threat to human health and the environment posed by the production of noxious chemicals. The judgment and principle derived from Oleum Case were applied and upheld in the case of Bhopal.

In furtherance to the principle, the Indian Legislature also passed the Public Liability Insurance Act, 1991, to ensure speedy compensation. The Act makes it mandatory for enterprises manufacturing hazardous elements to take insurance under this Act so that it’s easier to give interim relief to the victims of the tragedy.

Absolute liability W.R.T Vizag gas leak

The leak in Visakhapatnam is unfortunate. It caused the death of eleven, hospitalizing and injuring several others. Jurists and Legal Luminaries say that the Indian Laws are clear on this one. They claim that LG Polymers are absolutely liable for the leak and they have to compensate for the same. No defence of negligence, fault or act of god or stranger will be granted.

In lieu of the same, the Andhra Pradesh Government announced Rs 1 crorecompensation to the family of the deceased, Rs 10 lakhs to the ones under treatment and Rs 1 lakh for the hospitalized.  However, these are ex gratia payments, separate from final liability. The National Green Tribunal also announced an interim compensation of Rs 50crore.

The Apex Court in its judicial pronouncements made it rather clear that the compensation or liability will be adjudged on the capacity of the firm or factory, so it acts as a deterrent for such accidents from happening again.

Apart from the firmbelief in the liability, advocates like Karuna Nandy have been advocating for an independent investigation in the case of Vizag leaks. The grave nature of the gas and the incident is to be closely monitored because the officials of LG Polymers have been claiming that the gas is not dangerous and cannot cause any detrimental health issue, but reports prove otherwise. She says, ‘there is a potential whitewashing of LGP’.  

The victims and their families can claim compensation through a tort claim or claim under the PLIA, 1991. 

A tort claim can be filed in civil courts based on absolute liability. The civil suit will further help in the joinder of parties, help consolidate and unify the case to assess the final degree of damage. It is also to be kept in mind that LG Polymers has a parent company in South Korea, just like UCC, Bhopal.

Claims can be filed under the PLIA 1991. This Act has made it mandatory for industries with hazardous chemicals to hold insurance. The victims can file a claim with the local Collector within five years of the occurrence of the accident or leak. The Collector then assesses the applications and damage, specifies the compensation amount that is to be paid immediately. The objective is to provide speedy compensation to the victims, and they can still approach the Court for higher compensation.

Critical analysis

LG Polymers is observed to be Absolutely Liable to the victims of the gas leak. The case is to be carefully scrutinized because it holds similarities with that of the Bhopal Tragedy. LG Polymers is a subsidiary company, with the parent company in South Korea, and this can bring problems in the litigation, just like Bhopal Tragedy. All the essentials of the principle are fulfilled in the case of Vizag leaks. The plant held hazardous substances that led to a disastrous leak because of the mismanagement of the same, and for all these reasons, LG Polymers is absolutely liable.

The principle of Absolute Liability does not recognize defence and exemptions, and therefore, one cannot be absolved off their liabilities. LG Polymers took the defence of Covid19 or the spread of Corona Virus as an Act of God for their mistake and inability to manage the plant. Furtherance to which, they claimed that the plant was closed for 40 days due to the lockdown. They have taken several defences like, the number of deaths is not large, and that the gas has no potential effects on health.

These defences, however, cannot be considered because Absolute Liability does not view the number of deaths; it is majorly concerned about the hazardous element and its effect on the ones exposed to it. The gas, however, is found to be life-threatening, with tendencies to deform foetuses, develop cancer and cause Central Nervous System depression. Only the factory has the resource and man-power to discover and guard against hazards or dangers and to provide a warning against potential risks.

Conclusion

India has a history of lethal gas leaks leading to a permanent disability of the future generations. The same may or may not be expected off the Vizag leak because styrene gas is said to have properties for a potential threat. However, tort laws in India were never codified or developed, which led us to follow the English Common Law, but the Oleum case helped modify the same. With the development of the principle of Absolute Liability, Indian Judiciary has seen a revolutionary transformation in the tortuous laws.

The above-mentioned pronouncements of the Indian Court have declared it in unequivocal terms that the ‘Absolute Liability’ is well established and has become part of the Indian Environmental Jurisprudence without any statutory mandate. The courts have been very responsive and innovative in this aspect. They have always rescued those who have suffered due to toxic chemical and pollution, be it man or nature. By asking the polluters and emitters to the task is merely performing their constitutional obligation.

Anyone who holds or carries hazardous activities has Absolute Liability under civil and criminal law. Under civil law, they are required to pay compensation for the death of victims, for discomfort, recovery and the environmental damage. Criminally, they shall be punished under environmental statutes such as the Environmental Protection Act of 1986, etc.

Author: Preethi Sivaraman from Symbiosis Law School, Hyderabad.

Editor: Yashika Gupta from Rajiv Gandhi National University of Law, Patiala.

Environment Protection Act: Vizag gas leak angle

Reading time: 8-10 minutes.

Amidst the nationwide lockdown to flatten the curve of the exponential spread of COVID 19, the incident on 7th May 2020 in Vishakhapatnam added fuel to the fire. It took 11 innocent lives and left hundreds of people hospitalized. It left people as well as stray animals gasping for breath. Many collapsed on the roads and turned grey. The dreadful event christened the Vizag gas leak, has also forced many to evacuate their homes.

This gas leak took place in the LG Polymers chemical plant in Vishakhapatnam. As the plant revived its functioning after being halted for weeks due to the nationwide lockdown the machinery faced a technical glitch. Styrene, a hazardous chemical, was being stored in the plant. It must be stored at a specific temperature but due to improper maintenance and storage, this harmful gas escaped and spread out in the nearby areas.

The gas leak occurred at 3 am and spread over a 5-km radius. The repeated tragedy of this kind demonstrates the value of human life in India. The tragedy also showcases the inadequacy in law and policymaking in regulating the activities of hazardous industries. Pages of history unveil the most devastating incidents like Bhopal Gas Tragedy and the government’s response to deter such issues. Claiming compensation from the wrongdoers is another struggle entirely as was seen in the Bhopal gas tragedy.

It was in the wake of the Bhopal gas tragedy, that the Indian Government enacted the Environment Protection Act, 1986. The aim was to implement the guidelines of the United Nations Conference on Human Environment, 1972. The EPA marked the government’s growing concern over the condition of the environment. Article 48A of the Indian Constitution urges the State to protect and to improve the environment of the country. Further, Article 51 A (g) reads that every citizen must protect and improve the natural environment including forests, lakes, rivers, and wildlife, and to have compassion for the living. However, despite the laws in place, tragedies like the Vizag gas leak continue to show the lacunas in the existing laws as well as in their implementation.

Relevant provisions of the Act and rules issued under it

Though there were many statutes that directly or indirectly dealt with the environmental issues, yet there was a vacuum that called for the enactment of umbrella legislation. This rising need for protecting the environment surfaced during the early 80s. The obligations that came out from the Stockholm Conference and the government’s concern received major influence after the Bhopal gas tragedy. It was in the aftermath of that disaster that the government realized that the then-existing law was not enough. At that juncture, the enactment of the Environmental Protection Act, 1986 brought a regulatory mechanism. It covered everything from expulsion of pollutants & handling of hazardous substances to the creation of authorities delegated with the duties of protecting the environment. It also laid down provisions for penalizing acts that were harmful to the environment and could have an adverse effect. It gave Central Government wide powers to protect the environment.

The relevant provisions in the Act include:

  1. Section 2(e): It defines a hazardous substance as any substance or preparation that can harm human beings, plants, microorganisms, and other living creatures due to its chemical properties or handling.
  2. Section 3(1): It empowers the Central Government to take necessary measures for the protection of the environment and for preventing, controlling, and abating environmental pollution.
  3. Section 3(2): It lays down certain measures that the government can take. They include
  4. planning and execution of a national program for the prevention and control of environmental provisions;
  5. laying down standards for emission or discharge of environmental pollutants;
  6. restriction of areas in which any industries or operations can or cannot be carried out;
  7. laying down procedures and safeguards for the prevention of accidents;
  8. laying down procedures and safeguards for the handling of hazardous substances
  9. examination of the manufacturing process, material, and substance as is likely to cause pollution

The Central Government can take any such measures that it deems necessary for effective implementation of this Act.

  • Section 6: This section empowers the Central Government to make take into their ambit the matters relating to procedures and safeguards for the handling of hazardous substances and restrictions on such handling in different areas.
  • Section 7: This section prohibits all persons from carrying any industry, operation, or process that discharges or emits any environmental pollutant more than the prescribed standard.
  • Section 8: This section lays down provisions prohibiting the handling of hazardous substances except in compliance with the prescribed procedures and safeguards prescribed.
  • Section 9: When the discharge of an environmental pollutant is more than the prescribed standard, this section puts the responsibility of informing the concerned authority of such discharge on the person in charge of the place. This section further states that such a person in charge is bound to prevent and mitigate the environmental pollution caused by the discharge. He is also bound to render all assistance during remedial measures.

The expenses incurred by the authority or agency for the remedial measures could be demanded (a reasonable rate as the government may decide) from the concerned person. This is the “Polluter Pays Principle”.

  • Section 10: It states that any person empowered by the Central Government has a right to and inspect any place. He can inspect and examine any equipment, industrial plant, record, register, or document and seize it as well if deemed necessary for the prevention of environmental pollution.
  • Section 15(1): To ensure compliance with the provisions of this Act, section 15 provides for penalties. Subsection 1 of section 15 states that the non-compliance of any provisions of the Act or rules made under the Act is punishable with imprisonment for a term up to five years or with fine up to one lakh rupees or with both. An additional fine of up to five thousand rupees is imposed for every day during which such failure or contravention continues.
  • Section 15(2): Subsection (2) of section 15 states that in case of a contravention that continues beyond a period of one year after the date of conviction, the offender is punishable with imprisonment for a term of up to 7 years.
  • Section 16: Every person who was directly in-charge or responsible for the company at the time of the offense will be liable along with the company.
  • Section 17: This section lays down provisions for offenses committed by government departments.
  • Section 19: This section empowers the Courts to take cognizance of offenses on a complaint made either by the Central Government or any person.
  • Section 24: If any act or omission that constitutes an offense punishable under the Environment Protection Act and also under any other Act, such an act or omission will be punishable under the other Act (not under the Environment Protection Act, 1986).

Some relevant rules made under this Act include:

  • The Environment Protection Rules, 1986
  • The Hazardous Waste (Management & Transboundary) Rules, 2016
  • The Manufacture, Storage, and Import of Hazardous Chemicals Rules, 1989
  • The Chemical Accidents (Emergency Planning, Preparedness, and Response) Rules, 1996

Their application w.r.t. Vizag gas leak

The Manufacture, Storage, and Import of Hazardous Chemical Rules, 1989 lists styrene as a hazardous and toxic chemical. Styrene is an organic compound that is a derivative of benzene. It is used in the manufacturing of appliances including refrigerators. It has to be stored at a temperature below 20°C. Exposure to this gas “affects the central nervous system”. It is also known to cause respiratory issues, breathlessness, nausea, irritation in eyes, and loss of consciousness among others. It severely affects those who have pre-existing respiratory ailments. The LG Polymers Plant was closed due to the nationwide lockdown and was preparing for reopening when this tragic accident occurred. Meanwhile, the chemicals were left unattended.

According to experts, styrene cannot leak in the air unless introduced to high temperatures. There was about 18,000 tonnes of styrene being stored in a tank that has a capacity of 24,000 tonnes. The temperature of this tank is said to have soared to 180°C, thus, causing the leak.

The Environment Protection Act, 1986 enables the Central government with sweeping powers to take any measures to protect the environment and ensure its implementation. The Environment (Protection) Rules, 1986 which set standards for restricting pollution to regulate the quality of life and protection of the environment are also to be implemented by the Central Government.

Apart from the provisions and rules made under the Environment Protection Act, several other laws provide safeguards. Some of these laws include:

  • The Bhopal Gas Leak (Processing of Claims) Act, 1985
  • The Public Liability Insurance Act, 1991
  • The National Environment Appellate Authority Act, 1997
  • National Green Tribunal Act, 2010

From seeking clearance to an inspection of the facilities to measures for storage of toxic chemicals, laws and protocols are in place to prevent incidents like the Vizag gas leak. But, their implementation has only been a dream. Investigations reveal that the cooling system was clogged, the storage tanks were very old, and there was no warning system in place. There was already a lack of safety precautions which was then enhanced by the lockdown. Moreover, the plant was running on state permits and had no clearance from the Centre. This was more of a grey area in the legislation. The sheer lack of responsibility that endangers the lives of others is clear from the Vizag gas leak case.

This was a major accident. The Environment Protection Act will play an important role in fixing the liability of Vizag LG Polymer Plant for its negligence and violation of the prescribed mandates.

Critical analysis

The Vizag gas leak reminded everyone of the terrible Bhopal gas tragedy. Despite the laws in place, such an accident was not expected. But the ground reality is different. The loopholes in the existing legislation and a lack of implementation have allowed such gas leaks and chemical spills to occur again and again over the years.

Soon after the crucial situation in Vishakhapatnam, the Andhra Pradesh High Court as well as the National Green Tribunal took suo moto cognizance of the accident. The AP High Court directed the State “to take necessary measures to mitigate the losses” while asking how such a plant was running amidst residential areas. The NGT took notice of the failure to comply with the rules laid down under EPA, 1986. It formed a committee to probe the matter further. The Tribunal also directed the company to deposit an initial amount of Rs. 50 crores for the damages caused due to the gas leak.

What is noteworthy here is the application of the doctrine of strict liability by the NGT in this case. This outdated approach of NGT tends to degrade the legitimacy of EPA, 1986. The doctrine of strict liability evolved in the case of Rylands v Fletcher (1868) became obsolete with the advent of the principle of absolute liability in M. C. Mehta v Union of India, AIR 1987 SC 1086.

The Environmental Protection Act doesn’t hold any traces of strict liability in any of its provisions. It developed through precedents in the Indian legal system. However, this doctrine faced severe criticism for its wide variety of exceptions that open a convenient door for the wrongdoers to escape from their liability. In cases of strict liability, a person becomes liable only on non-natural use of land. Other defenses include:

  • Contributory negligence (plaintiff’s own fault)
  • Force Majeure (Act of God)
  • Act of a third Party
  • Volenti non-fit injuria (an act carried out with consent)

In the aftermath of the Bhopal gas tragedy, the judiciary started to move in favor of stricter laws. In M. C. Mehta v Union of India, the Hon’ble Supreme Court advanced the rule of ‘absolute liability’ (no-fault liability). This case is also known as the Oleum gas leak case. The Court held that it was impossible to use the age-old rule of strict liability given the improvement in science and technology. The companies cannot get out of their liabilities by claiming exceptions. It would be their absolute liability. If they have done the damage, they would pay for it (Polluter Pays Principle).

Section 16 of EPA makes the person in charge and the company vicariously liable except:

  • If the offense is committed without his knowledge.
  • If he has carried due diligence to prevent the commission of the offense.

Though the EPA is explicit in addressing the liability, the exceptions are highly subjective. This leaves a loophole for the perpetrators to escape from the liability. In other words, the term “due diligence” in section 16 is subject to interpretation, as the EPA hasn’t defined the standard of such due diligence. Even though the Act strengthens the Central Government to monitor the environmental issues, it remains ambiguous with regards to the doctrine of absolute liability.

It is noteworthy to mention that heavy penalties have been prescribed for the first time against the offenders under section 15. But the loopholes present in sections 16 and 24, for instance, dilute its effects. Section 24 of the Act postulates that if an offense under this Act is also an offense under any other Act, the offender shall be punished only under the other Act. Thus, the Act remains a toothless tiger as it is just regulatory. Moreover, the Act is meticulous about ousting the jurisdiction of Civil Courts. But, no proper provisions exist for prosecuting the offenders and companies for the same.

There is another side to this coin. The Act also has some proactive provisions. Before the enactment of EPA, no legislation enabled a common man to move against an offender. But EPA expanded the locus standi. Section 19 of EPA gives “any person” the right to approach the court for complaining against an offense under the Act. However, the good parts of this Act get overshadowed by its many loopholes.

Some suggestions for improvement of the EPA are:

  • To make the hazardous companies absolutely accountable for their offenses against the environment, provisions related to absolute liability must be incorporated in the Act.
  • Specific punishment for specific offenses is the need of the hour.
  • With the view to implement the act effectively, provisions regarding the prosecution of offenders and the competent forum of prosecution must be incorporated in the Act and the existing provisions strengthened.
  • Phrases such as “due diligence” must be defined. There has to be a set standard that is actually implemented.
  • Section 15 fails to include the minimum punishment for environmental offenses. This needs clarification to reduce the ambiguity while pronouncing punishments under EPA, 1986.

Conclusion

Though the Environment Protection Act, 1986 aims to protect the environment with many provisions to punish the offenders, it has a lot of loopholes. There is immense scope for amendments in the Act especially in sections 15, 16, and 24. Provisions for absolute liability, prosecution of offenders, and the establishment of a competent forum of prosecution need to be incorporated in the Act. It is necessary to give teeth to this legislation to make it more effective. Here, all the pillars of democracy must work together to protect the environment as well as people against accidents such as the Vizag gas leak.

The legislation should come up with subsequent amendments of the Act to make the hazardous companies accountable for negligence by remedying the loopholes. The executive must ensure the proper implementation of the laws. The judiciary must ensure that the laws are not being misused and are up to date. This would also mean training the concerned authorities to be environmentally conscious. This would deter the repetition of such accidents in the future that harms both the environment and humans. Until then, tragedies like Vizag gas leak will go down in history as just another tragedy.

Author: Valan. A from Tamil Nadu National Law University, Thiruchirappalli.

Editor: Shalu Bhati  from Campus Law Centre, Faculty of Law, University of Delhi.

Vizag gas leak case: Legal angle

Reading time: 8-10 minutes..

Thursday, 7th May was a disastrous day for industrial workers as a leak of the toxic Styrene gas killed 11 people and affected over 1,000 more. The gas leaked from a storage facility of a chemical plant belonging to LG Polymers, in the early hours of the day. The plant has been set up in 1961 when the area was considered to be on the outskirts of the city, however over time, it has grown to be a relatively densely populated area. The gas spread over a 3-kilometre radius, affecting at least 5 villages and forcing roughly 2,000 people to evacuate from the area. 

According to eye-witness reports, the incident was initially thought to be a fire accident, however, as the pungent smell spread, several people rushed out of their homes leaving their doors unlocked. While a few people collapsed on the streets, two people who tried to flee on a motorcycle died after their vehicle crashed and another fell from the balcony of his house after being blinded by the fumes.

The police received an emergency call by 4 a.m. and the first team reached the spot in 20 minutes. 

Details about the incident

It was around 3.30 a.m. on Thursday when an unusually foggy dawn in summer surprised the early risers, who was suspecting a fire accident nearby. But they were caught unaware by the pungent smell and breathlessness.” Residents of habitations around Gopalapatnam, close to the site where the LG Polymers plant is located, passed out as the hazardous styrene vapour swept through the area. People tried to flee as a result of panic and the chemical rendered them unconscious. There are horrific stories of people falling from buildings, or into wells and ditches as they lost consciousness. Styrene, the chemical involved in the disaster-struck plant that produces polystyrene products, is included in the schedule of the Manufacture, Storage and Import of Hazardous Chemical Rules, 1989. There are strict norms on how it should be handled and stored. Although it will take an inquiry to establish what caused the incident, the company and the State government knew that the chemical was hazardous, characterised by poor stability under a variety of conditions that could even lead to explosive situations. Styrene is an organic compound having the formula C8H8.

It is a flammable liquid that is used in the manufacturing of polystyrene plastics, fibreglass, rubber, and latex. Short Term Exposure to styrene can result in respiratory problems, irritation in the eyes, irritation in the mucous membrane, and gastrointestinal issues. Long-Term Exposure can affect the central nervous system drastically and lead to other related problems like peripheral neuropathy. It can also lead to cancer.

South Korean chemicals giant LG Chem has sent an eight-member team from Seoul to investigate the  and rehabilitate the victims of the tragedy that killed at least 12 people and forced the evacuation of thousands.

Public reaction

After instant reaction of terror, tension prevailed in front of the main gate of LG Polymers in RR Venkatapuram in Visakhapatnam, as villagers carrying four dead bodies of those who died due to the leakage of styrene monomer gas; staged a protest, demanding the shifting of the company on Saturday. The incident took place when DGP of Andhra Pradesh D. Goutam Sawang, was visiting the accident site.

Over 100 villagers carrying four dead bodies staged a protest demanding that the company has to be shifted, as they now have to live with an ever present danger. The police had to resort to a mild lathi charge to mitigate the situation. But they left only after Commissioner of Police Rajeev Kumar Meena intervened and assured them to look into their grievances. Chief Minister Y.S. Jagan Mohan Reddy immediately announced a package of ₹1 crore to the family of the deceased, jobs to one member from the family and a slew of other relief packages.

Laws involved

The situation is reminiscent of the infamous Bhopal Gas tragedy, during which the only law governing such accidents was the Indian Penal Code, and the accused were charged under the culpable homicide law in India. Soon after, the Government passed a series prescribed penalties and safeguards for similar catastrophes as well as regulations for the environment. These included the Environment Protection Act, 1986, the Public Liability Insurance Act, 1991, and the National Green Tribunal Act, 2010. All of these Acts, along with more provisions of the IPC as well as the Common Law of the country is being used to understand liability and fault in the present scenario. These have been elaborated on below.

Indian Penal Code

The local police have registered a case against the management of LG polymers under various sections of the Indian Penal Code. These include Section 278, vitiating atmosphere to make it noxious to health; Section 284, negligent conduct of poisonous substances; Section 285, negligently conducting fire or any combustible matter; Sections 337 and 378, causing hurt and grievous hurt and endangering life and safety of others and Section 304, culpable homicide not amounting to murder. 

Public Liability Insurance Act claims

The Public Liability Insurance Act was enacted in 1991 after the Bhopal Gas tragedy to allow compensation for victims of accidents irrespective of neglect on part of the owners of the companies behind such accidents. It mandated all industrial and chemical companies to have this insurance. LG Polymers has two policies, a Public Liability Act as mandated by the Act with an ‘Any One Accident’ of Rs. 5 Crore, and an industrial PLI policy with a limit of 5 Crore. This means that that the insurance company underwriting for LG will not be liable to pay more than 10 Crore in damages for the entire incident, irrespective of the extent of harm.

However, the Public Liability Insurance Act itself comprises of reimbursement only up to a maximum of Rs. 12,500 per person injured, and Rs. 25,00 for deaths or permanent disability. For loss of wages due to temporary disablement, there is a monthly relief of Rs. 1,000 per month for 3 months and roughly Rs. 6,000 for damage to private property of the general public. Since the insurers’ liability is based on outdated standards, it may cause problems for victims to get their required compensation. However, the company’s liability doesn’t need to end at the legislative boundary. Similar to the Bhopal Gas case, higher compensation may be given if victims approach courts in the form of class-action suits.

Strict and Absolute Liability

The principle of strict liability evolved in the landmark English case of Rylands v. Fletchers. It states that any person who keeps hazardous substances on his premises will be held responsible if such substances escape the premises and cause any damage. The principle has certain exceptions to it and is commonly used in large-scale disasters such as this. In the present case, the NGT has held that the company is strictly liable.

However, there exists another principle developed by the Indian Supreme Court which may also be relevant to the present case. Known as the ‘Absolute Liability’ principle, it evolved in the infamous Oleum gas leak case and was later applied to the Bhopal Gas Tragedy.

Absolute liability can be understood as strict liability without any of the exceptions provided to it in law. According to the rule, if any person is engaged in an inherently dangerous or hazardous activity, and any harm is caused due to such activity, the person will be held absolutely liable, with no exceptions of defences. This principle was developed after the first one was found to be “woefully inadequate” and has since then been codified in Section 17 read alongside Schedule I of the NGT Act, 2010.

According to the NGT Styrene gas is a hazardous chemical defined under Rule 2(e) read alongside Entry 583 of Schedule I of the Manufacture, Storage and Import of Hazardous Chemical Rules, 1989. Furthermore, the previously mentioned PLI Act was framed and enacted on the premise of absolute liability to indemnify the general public affected by industrial activities. Despite this, the NGT has held the company strictly liable, leading to unwarranted confusion.

Environmental Protection Act, 1986

After the Bhopal situation, one of the various legislations laid down was the Environment Protection Act, 1986. It is a landmark act that provides the Central Government with a wide range of powers to take all necessary measures to protect the environment. Among the regulations laid down under it, there are strict procedures to be followed for storage of hazardous chemicals and maintenance of chemical plants. However, reports have revealed that the haste shown by the company in reopening the plant led to them ignoring the protocol of maintenance, which when combined with the lack of proper storage led to the rupture and leak.

The Act also lays down guidelines for an Environmental Impact Assessment or clearance that has to be granted before industries begin their operations. According to reports, the polymer plant was set up before EIA guidelines were applicable and although they subsequently got permission from the state pollution control board, they applied for an environmental clearance only in 2018. Due to some procedural confusion, their application was received only last month. Based on this it can be seen that the project had not been approved and multiple violations have taken place.

Critical analysis

The Vizag gas leak, its causes and the reactions of the management and state are disturbingly similar to the Bhopal gas tragedy. This shows that no good lessons have been learnt from the 1984 Union Carbide disaster. Corporations and the administration still deploy untruths, and non-scientific and empty reassurances to underplay the incident and its systemic causes. LG Polymers has claimed that styrene gas began leaking around 2.30 am from a storage tank containing 1,800 tonnes of the volatile compound. The gas spread through five densely populated villages in Gopalapatnam, killing people and cattle, including buffaloes, dogs and even birds. The air remained dangerously polluted until at least 6.30 am. Like in Bhopal, there was no warning from the factory. The company statement claims that stagnation and changes in temperature inside the storage tank could have resulted in auto polymerisation and caused vaporisation. By 10.30 am, police commissioner R.K. Meena had declared that the gas was “non-poisonous.” The Andhra Pradesh Police was also advising people to drink milk and eat bananas and jaggery “to neutralise the effect of the gas”. The company’s explanation and the commissioner’s assurances are dubious. But like with Bhopal, in Vizag too, the company and the state appear to be underplaying the toxicity of whatever it is was in the air.

Bhopal and now Vizag have made painfully clear that the erosion of workers’ rights and employers’ obligations could have fatal implications for workers and surrounding communities.

The High Court of Andhra Pradesh has taken suo moto cognizance of the incident of gas leak in Vishakhapatnam. The High Court has directed the State to take all necessary steps to mitigate the loss that may be caused due to this incident. Medical treatment to the affected persons being the primary focus of the Court, the Court said that the persons living in the vicinity of the industry to be evacuated by the National Disaster Response Force (NDRF) and local hospitals must also open up for treatment of the affected persons along with government hospitals.

The Court has appointed Senior Counsel YV Ravi Prasad as Amicus Curiae in the case and directed the District Legal Services Authority to provide proper assistance through part legal volunteers.

Conclusion

The unfortunate gas leak tragedy is a reminder that safety is paramount when exiting the lockdown. The immediate focus of the Andhra Pradesh government must be on the medical needs of those who have been grievously affected by the gas leak, which has inevitably led to comparisons with the 1984 Bhopal gas disaster. As a harmful chemical, styrene could have chronic effects beyond the immediate symptoms. International safety literature cites it as a substance that may cause cancer; there is thus no safe limit for exposure to it. Adequate payments and compensation for the victims and families are important, but so is access to the highest quality of health care for the victims.

What happened in Gopalapatnam is also a warning for industries across India. Although some may see the incident as a consequence of the lockdown, the States have the authority under the Central government’s orders to exempt process industries. It needs no special emphasis that safety of industrial chemicals requires continuous watch, with no scope for waivers because a mere negligence or callousness can claim thousands of lives. As India aims for a wider manufacturing base, it needs to strengthen its approach to public and occupational safety.

Authors: Soumiki Ghosh from Maharashtra National Law University, Aurangabad and Neharica Sahay from Symbiosis Law School, Pune.

Editor: Anmol Mathur from Symbiosis Law School, NOIDA.