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A Blast from the Past: Revisiting the Bhopal Gas Tragedy

Aroonima Anup, Student, St. Joseph's College of Law, Bengaluru

Introduction

Akin to the Bhopal Gas Tragedy of 1984[1], a devastating incident on May 7th, 2020 claimed 11 lives and left thousands of humans and animals critically injured. The Styrene Gas Leak in Vizag, Andhra Pradesh was an industrial accident from a chemical plant owned by South Korean giant, LG Polymers, in R. Venkatapuram village.[2] The fumes from the Styrene gas engulfed the surrounding five villages within a three-kilometre radius near Gopalapatnam.[3] LG Polymers claimed that “stagnation and changes in temperature inside the storage tank could have resulted in auto polymerisation and could have caused vaporisation”[4].


Styrene Gas and its Effects

Styrene is a flammable chemical compound used in the manufacture of polystyrene plastics, latex and fibreglass. It is also found in vehicle exhausts and cigarette smoke and has lasting effects. According to Rule 2(e) plus Entry 583 of Schedule I of the Manufacture, Storage and Import of Hazardous Chemical Rules 1989, styrene gas is labelled as a “hazardous chemical”.[5] The US-based Environment Protection Agency (EPA), states that transitory exposure to this lethal gas can lead to dizziness, vomiting, gastrointestinal issues and cause eye soreness. The probable cause of death in humans and animals is asphyxia or oxygen deprivation[6] and is classified as a carcinogen. [7] When it comes in contact with mucous membranes, it leads to irritation and blistering.[8] When exposed to minimal amounts, it can be hazardous, whereas subjection to long-standing and unrestrained exposure can be fatal.[9]


Strict Liability: Applicable or not?

The National Green Tribunal, a special court to adjudicate on environmental matters, has taken suo moto cognisance on the Styrene Gas Leak tragedy and invoked the principle of Strict Liability.[10] The NGT order stated: “Leakage of hazardous gas at such a scale adversely affecting public health and environment attracts the principle of ‘Strict Liability’ against the enterprise engaged in a hazardous or inherently dangerous industry.”[11]

Strict Liability was promulgated in the landmark case Rylands Vs Fletcher[12], where Justice Blackburn defined the principle as: “the person who, for purposes of his own, brings on his land, and collects and keeps there anything likely to make mischief if it escapes, must keep it in at his peril, and, if he does not do so, he is prima facie answerable for all the damage which is the natural consequence of its escape.”[13] It was further held that the principle restricts Liability when the escape is due to an act of strangers, Act of God, the plaintiff’s own fault or when it happens with the consent of the person injured.[14]

The Supreme Court of India has highlighted the loopholes of the principle in the novel mechanised world, mainly concerned over the risks that modern industries pose to humans and the environment. The SC felt the need for more stringent action following the case of M.C. Mehta Vs Union of India [1987][15] famously quoted as the Bhopal Gas Tragedy Case. The rule of Absolute Liability replaced Strict Liability, for the former did not provide for any exceptions for industries handling hazardous substances and made them wholly liable.

This rule insinuates that whenever an industry engages in handling or manufacturing of hazardous substances, persons threatened by the adverse effects of the substances along with individuals in the vicinity of the industry must be owed an absolute duty that they will be protected from harm. The industry will be solely and entirely responsible for any damage or harm caused to those to whom the duty of care is owed and in turn, must compensate aggrieved parties. The industry cannot claim negligence, nor can they contest that precautionary measures were taken to prevent the said harm.[16] Despite fulfilling the criteria to be governed by the rule of Absolute Liability, the NGT has classified this to be a case of Strict Liability.[17]


Consequences of Application of Strict Liability

Strict Liability absolves enterprises and creates room for exceptions when a toxic substance escapes and harms individuals. With the application of Strict Liability to the Styrene Gas Leak, LG Polymers has leeway to plead innocent on the various exceptions in place. A perfect example of such escapism is by stating that the resultant fumes were due to alterations in temperature in the storage unit or due to mishandling valve controls, polymerisation and stagnation which in turn led to vaporisation.[18]

Another concerning aspect of Strict Liability is the impact it will have on LG Polymers workers. There can be an evasion of duties such as compensating employees for damages and providing protection, considering the job entails the handling of hazardous chemicals. Such evasion of responsibility, especially in the prevalent lockdown conditions, will cause grave injustice to the workers.[19]


Polluter Pays Principle

The close-knit relationship between the socio-economic policy and environmental policy manifests as the Polluter Pays Principle (PPP). [20] Keeping economic rationality in view, PPP is the environmental policymaking the polluter liable to internalise all costs and bear all responsibilities.[21] This principle has been by Indian Courts in the Oleum Gas Leak case[22] and Indian Council for Enviro-Legal Action v. Union of India,[23] where polluters were ordered to bear costs of damage caused to affected individuals, as well as costs of reversing ecological damage.

Following the Stockholm Declaration of 1972, India incorporated a wide array of legislation for environmental protection[24] and was explicitly laid out in the National Green Tribunal Act, 2010.[25] Under Section 3 and 5 of the Environment (Protection) Act, 1986, courts could enforce the Principle as it was incorporated under Principle 16 of the 1992 Rio Summit which expressed that “the polluter should, in principle, bear the cost of pollution.[26]

In the Vellore Citizen’s case,[27] the Court reiterated that the “precautionary principle” and the “polluter pays principle” are essential pillars of environmental jurisprudence. These principles have been reflected in Article 21 of the Constitution, guaranteeing life and personal liberty of all, as well as a mandate to protect the environment.[28]

Thus, strict implementation of the two principles must be undertaken in the present case to adequately compensate for human and environmental damage as well as act as a deterrent against such mishaps in the future.


Policy Recommendations

Public Liability Insurance Act, 1991 (PLI Act) was enacted following the Bhopal Gas Tragedy[29] to ensure that adequate monetary compensation is made to the victims. In case of death or permanent incapacity, compensation amounting to Rs 25,000 with a mere Rs 12500 for medical expenses along with Rs 6000 for property damage is offered. If there is a loss of wages, injured parties will receive, for three months, a sum of Rs. 1000 per month. Furthermore, enterprises have a cap limit on the Insurance amount at Rs 50 crore, irrespective of the size of operations. These provisions, having been promulgated in 1992, have not been subject to amendments, despite the extensive socio-economic changes over three decades. It is imperative to review the Act to reconsider the amount of compensation awarded as well as proportionally cap the amount of insurance, depending upon the size of the enterprise. [30]

Through an amendment of the Public Liability Insurance Act 1991, an Environment Relief Fund was created to alleviate those affected by chemical enterprises. Even after close to three decades, no notification has been announced by the government in the utilisation of this fund. Shockingly, more than Rs 810 crores remains unused in the said fund.[31] Hence, the government must justify the non-utilisation of funds to compensate victims of the Vizag Tragedy.

Industries involved in the handling of hazardous substances must be notified about suggested safety measures and precautions that must be taken by all workers. A cap on the minimum number of permanent trained staff present at all times must be promulgated to ensure casual workers do not interfere in the handling. Workers handling specific machinery must undergo educational sessions to identify any abnormalities in the working of the machinery to avert danger.[32] Censors and Failure Mode Analysis Systems must be employed to review and identify the potential failure of systems.[33]

In the wake of the Coronavirus pandemic and lockdown regulations, a separate set of rules must be legislated to regulate the functioning of industries handling hazardous substances. Enterprises dealing with toxic substances are ticking time bombs and are not at liberty to be let alone, lest stagnation and vaporisation occur. A minimum number of permanent trained staff must be engaged in running of the enterprise while following the requisite social distancing norms. According to the National Disaster Management Authority, sanitisation of all machinery must be conducted every two to three hours.[34] All industries restarting their enterprises must ensure all safety protocols and operational procedures are followed.

State of Andhra Pradesh must take cognisance of similar industries located amid densely populated areas. A leaf must be taken from the Delhi Master Plan, 1990, which classified industries into various zones based on their level of pollution and hazardous nature. Industries handling toxic substances and causing grave amounts of pollution were classified under the red zone and required to be relocated within three years.[35] This effort was adopted to ensure residential areas are protected from the ill effect of toxic fumes and for the public well being. A similar plan, as undertaken by the state of Haryana,[36] must be taken up by the state of Andhra Pradesh to ensure enterprises handling toxic substances do not come under city limits.

The nexus between the Andhra Pradesh Pollution Control Board and LG Polymers must be scrutinised. The latter has been embroiled in litigations with the state in relation to attempts to retrieve the twelve acres of land the enterprise has encroached upon. Paying no heed to this, the APPCB granted Consent for Establishment and Consent for Operation for the expansion of the enterprise. Furthermore, an in-depth inquiry must be conducted as to the reasoning behind the granting of permission to a profoundly hazardous industry amidst dense residential population despite the occurrence of close to 40 such industrial accidents. Amidst the Coronavirus lockdown, a No Objection Certificate was granted to the enterprise despite it being a non-essential service. The Board must be held answerable for its lax methods. [37] In many instances, even when enterprises are served closure notices, favourable orders are given by the government to favour continuing operations. [38]

The National Disaster Management Plan was framed, keeping in view the Sendai Framework for Disaster Risk Reduction 2015-2030. However, unlike The Sendai Framework, the NDMA has not been exhaustive in its provisions. It has not provided a clear roadmap as to how to go about disaster management, risk mitigation and reconstruction. Besides providing that it must be undertaken in short, medium and long term basis, it does not provide details regarding the duration of time within which these activities must be undertaken. [39] A more comprehensive and detailed report addressing those as mentioned above must be laid out by the government.


Conclusion

The Bhopal Gas Tragedy proved to be a turning point in the judicial sphere; however, it has evidently not been able to keep up with the growing needs and changes required in the legislative framework.

With the NGT using the more diluted principle of Liability, i.e. Strict Liability, it has paved the way for LG Polymers to cite ample excuses for the fatal mishap. With the NGT’s direction of LG Polymers required to deposit Rs 50 crores at the Visakhapatnam District Tribunal, it is embroiled in the quaint, superficial outlook that monetary compensation will do justice to the lives lost, pain endured and rights snatched. In these capricious times, it becomes the duty of every citizen to show compassion towards others and protect the environment.[40] Therefore, it places a duty on policy-makers to give impetus to mental and physical well-being, as well as safeguard the rights and dignity of its citizens.

[1] M.C. Mehta Vs Union of India [1][1987] [2] [Burning Issue] Vizag Gas Leak (14th May, 2020 1:05pm) https://www.civilsdaily.com/burning-issue-vizag-gas-leak/ [3] Ibid [4] Visakhapatnam gas leak: What is styrene gas? (14th May, 2020 4:00 pm) https://indianexpress.com/article/explained/vizag-gas-leak-what-is-styrene-gas-6398020/ [5] The Manufacture, Storage And Import Of Hazardous Chemical Rules, 1989 (14th May, 2020 10:00 pm) http://nagarikmancha.org/images/MANUFACTURE,%20STORAGE%20AND%20IMPORT%20OF%20HAZARDOUS%20CHEMICAL%20RULES,%201989.pdf [6] Ibid [7] [Burning Issue] Vizag Gas Leak (14th May, 2020 1:45pm) https://www.civilsdaily.com/burning-issue-vizag-gas-leak/ [8] Visakhapatnam: What Were the Health Effects of the Styrene Gas Leak? (14th May, 2020 1:30 pm) https://science.thewire.in/health/visakhapatnam-styrene-gas-leak-health-effects/# [9] Ibid [10] Vizag gas leak tragedy: NGT invokes ‘strict liability’ again (14th May, 2020 5:30 pm) https://mumbaimirror.indiatimes.com/news/india/vizag-gas-leak-tragedy-ngt-invokes-strict-liability-against-lg-polymers-asks-rs-50-crore-deposit/articleshow/75636114.cms [11] Explained: Strict liability rule that NGT wants to apply in Vizag gas leak case (14th May, 2020 6:00pm) https://indianexpress.com/article/explained/strict-liability-rule-that-ngt-wants-to-apply-in-vizag-gas-leak-case-6404442/ [12] UKHL 1, (1868) LR 3 HL 330 [13] Ibid. [14] Vizag Gas Leak: Why the NGT Should Have Applied Absolute, Not Strict, Liability (14th May, 7:00 pm) https://thewire.in/rights/vizag-gas-leak-ngt-strict-absolute-liability [15] 1987 SCR (1) 819, AIR 1987 965 [16] Vizag Gas Leak: Why the NGT Should Have Applied Absolute, Not Strict, Liability (14th May, 8:15pm) https://thewire.in/rights/vizag-gas-leak-ngt-strict-absolute-liability [17] Ibid. [18]Vizag gas leak very similar to Bhopal tragedy. India must probe before blaming workers (16th May, 2020 8:30 am) https://theprint.in/opinion/vizag-gas-leak-similar-bhopal-tragedy-india-probe-workers/416610/ [19] Vizag Gas Leak: Why the NGT Should Have Applied Absolute, Not Strict, Liability (14th May, 2020 8:45pm) https://thewire.in/rights/vizag-gas-leak-ngt-strict-absolute-liability [20] International Environmental Agreements Compendium, 1995 by the Pollution Prevention and Pesticide Management Branch, Ministry of Environment, Lands and Parks, British Columbia, Canada [21] Margaret Rosso Grossman, Agriculture and the Polluter Pays Principle, Electronic Journal of Comparative Law, Vol,11.3 (December 2007). [22] M.C. Mehta v. Union of India, 1987 SCR (1) 819. [23] AIR 1996 SC 353 [24] Water (Prevention and Control of Pollution) Act, 1974, the Air (Prevention and Control of Pollution) Act, 1981, the Environment (Protection) Act, 1986 and the Forest (Conservation) Act, 1980 [25] The National Green Tribunal Act, 2010 Sec.5 [26] Rio Declaration on Environment and Development (17th May, 2020 3:30 pm) http://environmentandhumanrights.org/resources/Rio%20Declaration.pdf [27] Vellore Citizens Welfare Forum v. Union of India (1996) 5 SCC 647 [28] The Constitution of India,1950, Art. 48-A , Art 51-A (g) [29] M.C. Mehta Vs Union of India [29][1987] [30]Vizag Gas Leak: India Must Overhaul Its Compensatory Regime (16th May, 2020 1:20 pm) https://www.hindustantimes.com/analysis/vizag-gas-leak-india-must-overhaul-its-compensatory-regime/story-oGNJIXVs1aenCC59uzKzVP.html [31] https://indianexpress.com/article/india/under-the-spotlight-gaps-in-law-to-deal-with-mishaps-like-vizag-gas-leak-6399360/ [32] After Vizag gas leak, NDMA Issues Guidelines For Restarting Industrial Activities( 16th May, 2020 5:00pm) https://www.deccanchronicle.com/business/companies/100520/after-vizag-gas-leak-ndma-issues-guidelines-for-restarting-industrial.html. [33] [Burning Issue] Vizag Gas Leak (May 16th, 2020 8:55 pm) https://www.civilsdaily.com/burning-issue-vizag-gas-leak/. [34] Ibid. [35] https://www.rgplan.org/delhi/MASTER-PLAN-FOR-DELHI_2.pdf. [36] Gurgaon: Polluting industries to be moved out of housing areas (16th May, 2020 9:30 pm) https://www.hindustantimes.com/gurgaon/gurgaon-polluting-industries-to-be-moved-out-of-housing-areas/story-VdrO6XWSueOxF2VD41COZK.html. [37] Why a Plastic Plant Was Deemed 'Essential' During Lockdown, and Other Questions on Vizag Gas Leak (16th May, 2020 6:30 pm) https://thewire.in/environment/polymer-essential-gas-leak-visakhapatnam. [38] What makes Vizag the hazardous industry capital of India? Bribes! (May 16th, 2020 7:00pm) https://www.deccanchronicle.com/opinion/op-ed/080520/what-makes-vizag-the-hazardous-industry-capital-of-india-bribes.html. [39] The new National Disaster Management Plan has several flaws (May 17th,2020 8:30 am) https://www.hindustantimes.com/analysis/the-new-national-disaster-management-plan-has-several-flaws/story-LrHOFHXg9gwrtOgYjXJDrK.html. [40]The Constitution of India, 1950, Art. 50 A (g).

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