Disposal of hazardous substances: Law in India

Reading time: 8-10 minutes.

The whole nation woke up to the news of a horrifying gas leak accident that occurred in the LG Polymers Chemical Plant located in the outskirts of Vishakhapatnam. This accident took place in the early hours of 6th May 2020 and claimed the lives of 11 people and injured hundreds. Christened as the Vizag gas leak, it exposed the people as well as animals in a radius of about 3 km to the hazardous styrene gas. The exposure left everyone gasping for breath. Sights of people and stray animals collapsing on roads could be seen. Since the gas leaked at a time when most people were sleeping, they could not even run to save themselves. It left a foul smell which also prevented the first responding authorities from going in for the rescue.

The accident occurred as the plant was preparing to reopen for the first time after the nationwide lockdown was announced from 24th March. The chemicals were left unattended during the lockdown. The malfunctioning of the tank’s refrigerating unit led to a rise in temperature, which caused styrene (usually present in liquid form) to evaporate. The authorities soon took the necessary steps and evacuated the nearby area with the help of the NDRF (National Disaster Response Force). They also shifted the affected people to nearby hospitals.

Many relevant questions arise after this incident such as whether the company followed the guidelines and precautionary measures, what caused the gas leak, why were safety measures not in place, and why was no maintenance done during the lockdown among others. All these questions must be answered to decide upon the accountability.

The Vizag gas leak was not like the Bhopal gas tragedy in terms of magnitude but it reminded everyone of the same. It poses questions and points at the loopholes in the existing environmental laws as well as their implementation.

Law regarding hazardous substances in India

According to the National Disaster Management Authority (NDMA), India has witnessed over 130 chemical accidents in the recent past. These accidents have caused about 259 deaths and left more than 560 people severely injured. At present, there are more than 1861 Major Accident Hazard (MAH) units spread across India. Moreover, there are thousands of registered and hazardous factories along with unorganized sectors that deal with hazardous substances. These substances pose a serious risk that can escalate to the levels of a disaster.

An overview of laws regarding management, handling, and disposal of hazardous substances in India:

  1. Environment (Protection) Act, 1986

The definition of a hazardous substance is specified under section 2(e) of EPA. It defines a hazardous substance as any substance or preparation which can cause harm to human beings, plants, microorganisms, and other living creatures due to its chemical or physiochemical properties or handling.

Section 3 of EPA empowers the Union Government to take all such measures as it deems necessary to protect and preserve the environment. It empowers the Central Government to lay down safeguards and procedures for the handling of hazardous substances.

  • Hazardous Waste (Management & Transboundary) Rules, 2016

The Central Government through exercising the powers conferred via sections 6, 8, and 25 of the EPA has formulated the Hazardous Waste (Management and Handling) Rules, 1989. Let’s familiarize ourselves with the meaning of the word “hazardous waste”. It means waste material with properties that make it potentially dangerous and harmful to human health or the environment. The hazardous waste can be in solid, liquid, or gaseous form. They are specified in different categories under the Hazardous Waste (Management and Transboundary) Rules, 2016 that have replaced the 1989 rules. Recently an amendment was introduced by the government in 2019.

  • The Manufacture, Storage and Import of Hazardous Chemicals Rules, 1989

These rules focus on the use and storage of hazardous chemicals. These rules lay down provisions about how the chemicals and other dangerous substances must be manufactured, stored, and imported. They require proper assistance, utmost care, and diligence.

  • The Chemical Accidents (Emergency Planning, Preparedness, and Response) Rules, 1996

As the name suggests, these rules lay down provisions for planning, preparedness, and response in case a chemical accident occurs. These rules define hazardous chemicals by categorizing them under different heads and also provides for the constitution of cries alert systems and groups at different levels.

A draft National Action Plan was published in 2019 by the Central Government. The Ministry of Environment, Forest, and Climate Change had set up a National Coordination Committee that prepared this plan for dealing with chemicals. This committee was also responsible for drawing up the requisite legislation on chemicals. It made the following recommendations:

  • To compile a national chemicals inventory
  • Analyze and assess the risks of chemicals specified in such inventory
  • Develop strategies, policies, and regulations for risk mitigation
  • Implement the Globally Harmonized System of Classification and Labelling of Chemicals

The law w.r.t. Vizag incident

As far as the Vizag Gas Leak is concerned, one of the legislations that should govern the incident and the aftermath is the Manufacture, Storage and Import of Hazardous Chemicals Rules, 1989. These rules put Styrene in the category of hazardous and toxic chemicals. This was the gas that leaked in Vishakhapatnam and caused the death of 11 people and injured hundreds. An investigation has revealed that the gas leaked due to faulty storage and maintenance.

Styrene is present in liquid form and has to be stored at a temperature of 20°C. In the present case, the LG Polymers Plant was shut down ever since the nationwide lockdown was announced. There was no maintenance for the chemicals stored in the plant during this period. As the plant was preparing to reopen, the styrene gas leaked. It was due to a fault in the freezing equipment which forced the temperatures of styrene to rise so high that it evaporated ultimately leading to the leakage.

On 8th May 2020, the NGT took suo moto cognizance of the matter and invoked strict liability against LG Polymers. This rule has, however, become redundant with the evolution of absolute liability. NGT also directed the Chemicals Company to deposit a sum of Rs. 50 crore with the District Magistrate, Vishakhapatnam.

Let’s understand the difference between strict and absolute liability.

  1. What is a Strict Liability?

This rule was developed in Rylands v Fletchers, (1868) LR 3 HL 330. As per this principle, any person who keeps hazardous substances on his premises will be held responsible if such substances escape the premises and cause any damage. Though, the liability under this rule arises only in cases of non-natural use of the said premises.

Exceptions to the strict liability rule include:

  • Act of God
  • Act of a third party
  • Plaintiff’s own fault or contribution led to the incident
  • Volenti non fit injuria i.e. if the hazardous act was carried out with the Plaintiff’s consent.
  • What is Absolute Liability?

Unlike strict liability, there are no exceptions to the rule of absolute liability. This means the hazardous enterprise would be liable for the harm caused by its activities without considering the exceptions to the Strict Liability rule. It will be liable to pay compensation to the victims depending upon the magnitude of the damage and financial capability of the defendant. This rule was evolved by the Hon’ble Supreme Court of India in M. C. Mehta v Union of India, AIR 1987 SC 1086.

Law vs ground reality

The disposal and management of hazardous waste is a concept with which developing countries like India have to constantly struggle. Even the developed countries face this struggle. The harmful effects of hazardous substances and wastes are well known. According to Green Peace, more than 3 million tons of toxic and hazardous waste was shipped by industrialized nations to the still-developing nations from 1986 to 1988. The former were growing increasingly mindful and were frightened by the dangers of hazardous waste. Thus, began the practice of turning the developing and under-developed nations into a convenient dustbin. The Basel Convention tried to deal with this issue. However, the rich nations dumping their waste in poor nations continued.

In India, many enactments and rules are in place for the effective and proper disposal of hazardous wastes. Similarly, there are provisions for the manufacture, storage, transfer, and handling of hazardous substances. These laws either suffer from loopholes or are not being implemented properly.

The enactment of laws and the ground reality of their implementation are two sides of the same coin that completely neglect each other. The laws are either not stringent enough or, even if they are, they are not implemented as required. The laxity in the laws combined with the existing loopholes allows wrongdoers to keep up with their harmful practices.

The Chemical Plant in question in Vishakhapatnam too was being run based on a loophole. It had no Central clearance but had the State permit. The storage tanks were old and no maintenance was done when the plant was shut. NGT has raised certain questions that shine a light on the poor implementation of laws be it EPA or the rules formulated under it.

The Bhopal gas tragedy in 1984 was a result of similar negligence as is seen in many such accidents even today. The aftermath of this tragedy had led to the enactment of many laws. Now, a violation and lack of implementation have put the lives at risk once again.

Scope of improvement in laws

India is a growing economy. The main driving force of such an economy would remain to be old, new, as well as developing industries. These industries will continue to grow in India and the unattended manufacture, storage, and handling of hazardous waste would continue if stringent measures are not adopted.

Following are some suggestions for improvement in the laws:

  • Framing stricter provisions and laws followed by vigorous implementation.
  • Regular and timely inspections of chemical plants and all such industries dealing with hazardous substances.
  • Creation of consciousness towards the environment and people through awareness and stricter punitive measures.
  • Establishing a standard operating practice and standardized protocol for all the industries. Such a protocol must come with strict punitive measures in case of violations.
  • With regards to the disposal of the wastes in India, a hazardous waste treatment facility must be set up in every district of India, if necessary.
  • Framing of proper methods and guidelines for industries for disposal of hazardous waste.

Government agencies should look into the loopholes. Awareness is the answer when it comes to the prevention of such dangerous disasters. Because lives that are once lost can never be retrieved back. The protection of the environment, as well as the people, should be the topmost priority.

Critical analysis

It is often seen that developing countries like India focus on the development and growth of industries. They have laws in place owing to their international obligations or due to pressure from within the country but these laws are usually not enough. The industries more than often end up violating the safeguards due to the lack of effective provisions. On the other hand, the appropriate authorities end up ignoring these violations.

It is a common practice for the owners of plants or industries to employ such laborers that take minimum wages but are not necessarily trained or qualified to handle hazardous substances. Any sort of relaxation or ignorance on the part of the government towards the industries can result in casualties. Such a behavior emerges from a complete disregard not just towards the environment but also towards fellow human beings.

Incidents like the Vizag gas leak cannot be ignored on the sole basis that such industries and plants are involved in the production of basic and important goods. The harmful impacts are not to be ignored. Though laws have been made to curb such acts, no one really cares about the violation of laws or the implementation till the time something bad happens. And only when a major incident takes place destroying lives and environment that the concerned authorities and the people, in general, open their eyes. It is only then that they remember these laws and their usefulness. Instead of putting laws to sleep, they should be out to use. Their existence without implementation renders them meaningless.

Conclusion

It is sufficient to state that we require more stringent and integrated laws. A complete and strategic framework for the handling of hazardous substances as well as hazardous wastes is the need of the hour. There is an urgent need to build upon existing systems and strengthen them rather than introducing new but toothless laws. The prevention of disasters caused due to hazardous substances must be the top priority.

Authors: Rishita Saxena from Bharati Vidyapeeth University, New Law College Pune and Maaz Akhtar Hashmi from Faculty of Law, AMU.

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

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