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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:
- 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.
- 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.
- Section 3(2): It lays down certain measures that the government can take. They include
- planning and execution of a national program for the prevention and control of environmental provisions;
- laying down standards for emission or discharge of environmental pollutants;
- restriction of areas in which any industries or operations can or cannot be carried out;
- laying down procedures and safeguards for the prevention of accidents;
- laying down procedures and safeguards for the handling of hazardous substances
- 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.
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.
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.