Vizag gas leak case: Legal angle

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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.

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