Vizag Gas Leak: A Reminiscent to Bhopal Gas Tragedy

What had happened?

During the wee hours of the intermediary night of 6^th and 7^th May, the people of RR Venkatapuram and 4 more villages were sleeping peacefully during COVID 19 outbreak; the sky of about 1.5 to 3 km radius quickly filled up with Styrene Gas, a colourless odourless gas used in manufacturing polystyrene plastics, fibreglass, rubber, and latex; It is usually non-poisonous but fatality might occur due to prolonged exposure.

The origin of the gas leak came from LG Polymers India; The plant makes-produces polystyrene plastic used in cutlery, cups and packaging for cosmetics. Due to inhaling this gas at least 12 people lost their lives; and about 800 people got admitted in hospitals and thousands of lives affected. The impact is still curtailed keeping in view that it is a home of about 4000 people and about 1500 households. People have been evacuated.

One of the key factors leading to this incident is that the factory was closed due to the COVID 19 pandemic; and the lockdown imposed by the government in response to the same. After the Ministry of Home Affairs issued guidelines for allowing the factories to reopen.

Comparison with Bhopal Gas Tragedy

This incident revived the horrific memories of the Bhopal Gas Tragedy. It took place approximately 36 years ago and more than 4000 died due to a poisonous gas leak in a major pesticide manufacturing plant. Its impact is still visible in the suffering of the survivors and their subsequent generations. In both incidents, innocent people were sleeping peacefully at night; the dangerous gas engulfed the air they were breathing putting them to sleep forever.

One of the striking similarity in both situations is the lack of any sirens or warnings. The people awake at the late hours noticed some strong smell and alerted others. Further investigation in this matter is imperative to understand whether there is implementation of protocols or not.

Legal Remedies

Under the Indian Penal Code,1886 the accused got booked. Official investigation are in commence in this regard. The charges imposed by CBI are Culpable Homicide not amounting to murder (Section 304) and Corporate negligence (Section 304A). This is because of the negligence in handling dangerous substances and causing threat and endangering lives of innocent people.

According to an Indian Express report, Vizag plant did not have valid environmental clearance between 1997 and 2019.[1] If this turns out to be true in the official investigation, the incident will no longer be an accident; but a major negligence on part of both the company and the state.

A new concept that emerged in the Oleum Gas Leak Case[2] which was pursuant to the Bhopal Gas Tragedy in 1987 was of “Strict Liability”. This is more severe than the common law doctrine of absolute liability. Absolute liability was unfit for providing justice to Bhopal Tragedy victims. Thus, under strict liability, anyone dealing with non-natural use of land and keeps “hazardous substances” on the premise is absolutely responsible for any damage it causes via the escape of such a substance but allows certain defences like the Act of God, the act of third party etc.

But the principle of absolute legibility says “that where an enterprise is engaged in a hazardous or inherently dangerous activity and harm results to anyone on account of an accident in the operation of such hazardous or inherently dangerous activity resulting, for example, in the escape of toxic gas; the enterprise is strictly and absolutely liable to compensate all those affected via the accident and such liability is not subject to any of the exceptions”. The doctrine of strict liability originating in Rylands vs Fletcher case[3] allowed to employ a number of defenses for the accused.  This principle, later on, found its place in section 17 of the National Green Tribunal Act pertaining to “no-fault principle”.

The Environment Protection Act, 1986 and the subsequent rules like Manufacture, Storage and Import of Hazardous Chemicals Rules, 1989 and the Hazardous Wastes (Management, Handling and Transboundary Movement) Rules, 2008 came in existence to govern the use of hazardous substances.

All this means that in the case of Vizag incident, there is no need to show negligence on part of the company; and because of their dealings with inherently dangerous substances, they are directly responsible. However, investigation is still ongoing and concluding anything would not be possible.

Other Important Legislations

The Public Liability Insurance Act, 1991 is an important legislation which comes into play. It aims to provide for people affected by accidents which occur while handling hazardous substances. Additionally, the Environment Protection Act, 1986, empowers the state to undertake inspections of factories and industries and regular updates on environment clearances.

The Civil Nuclear Liability Act, 2010 could have been the most effective and direct legislation for this particular incident. It provides remedies for victims of a nuclear incident by fixing civil liability and giving appropriate compensation. However, it is a tragedy that the act only specifically deals with nuclear incidents. Despite of a proposal put forward at the hand of the then opposition leader Arun Jaitley in Parliament, to include all types of casualties from any sort of unconventional accident. Sadly, this was ignored and here we are today.

Impact on the Employees

There is a lack of development of labour laws in India even today. India has not ratified the ILO Convention Occupational Safety and Health Convention, 1981 (No. 155) due to logistical reasons and the inability to efficiently enforce it.

However, post-Bhopal Tragedy, amendment for the Factories Act, 1948, took place in 1987 to insert a Separate Chapter IV-A (Provisions dealing with hazardous processes). However, concerns remain as to safety precautions and disaster control measures. The act only incorporates the possibility of an explosion and not a case of a leak like the present incident.

What has been done till now as a response to the situation?

The Chief Minister in lieu of the loss suffered by the victims, announced a One Crore relief package along with a job to family of the deceased.

The National Green Tribunal in a rapid response to this took suo moto cognizance of the accident; and a formation of five-member committee took place instantly. Further, the next date of hearing is in schedule for May 18. Notices are issued to the Ministry of Environment and Forests, L G Polymers India, Andhra Pradesh State Pollution Control Board, Central Pollution Control Board, Vishakhapatnam District Magistrate.[4]

In a rather haste decision the committee ordered the LG polymers to deposit an initial amount of Rs 50 crores with the Vizag District Magistrate in lieu of the prima facie material. The amount is a lump sum estimate of the damage. This is in accordance with section 14 and 15 of the NGT Act.

Taking into account of the restarting of factories after lockdown, the National Disaster Management Authority through a letter to states[5] issued guidelines on restarting of the units.

They are:

1. Consider the first week as the trial or test run period
2. Ensure all safety protocols
3. Do not try to achieve high production targets in the first week of reopening
4. Employees who work on specific equipment are sensitized and made aware of the need to identify abnormalities. Including strange sounds or smell, exposed wires, vibrations, leaks, smoke, abnormal wobbling, irregular grinding or other potentially hazardous signs which indicate the need for immediate maintenance or if required shutdown.
5. Factories should ensure 24-hour sanitisation; especially in the common areas that include lunch rooms and common table;s which will have to be wiped clean with disinfectants after every single use.

The National Human Rights Commission as well as the Andhra Pradesh High Court have taken sou moto cognizance of the incident; and have issued respective notices to both center and state government for their hearings.[6] The court has appointed Senior Counsel YV Ravi Prasad as Amicus Curiae in the case. The hearing is schedule for 20^th May.[7]

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References:

[1] https://indianexpress.com/article/india/vizag-gas-leak-lg-polymers-india-green-nod-6399440/lite/

[2] MC Mehta vs Union of India, AIR 1987 SC 1086.

[3] Ryland vs Fletcher, 1868.

[4] https://www.newindianexpress.com/states/andhra-pradesh/2020/may/08/vizag-gas-leak-ngt-issues-notices-to-centre-lg-polymers-india-directs-company-to-deposit-rs-50-crore-2140742.html

[5] https://www.hindustantimes.com/india-news/after-vizag-gas-leak-centre-issues-guidelines-for-restarting-industries-post-coronavirus-lockdown/story-H7cL5POQ1UQss7UeXxrgTO.html

[6] https://timesofindia.indiatimes.com/india/11-killed-in-pre-dawn-disaster-as-gas-leaks-at-vizag-plant/articleshow/75612393.cms

[7] https://images.assettype.com/barandbench/2020-05/db60a01b-d2d7-49b7-b4fb-92b53947d441/Vizag_gas_leak___AP_HC.pdf