Analysis: NDMA guidelines for restarting industrial units

Reading time: 8-10 minutes.

A disaster is not bound by political, social, economic, or geographic boundaries. When it occurs, it impacts all. The impact of such a disaster, however, does not remain confined to its physical component. But, it transcends beyond the physical and enters the socio-economic sphere. On 9th May 2020 the National Disaster Management Authority (NDMA) issued detailed guidelines. Issued under the Disaster Management Act, 2005, these guidelines are on restarting the manufacturing industries after lockdown. This measure was taken days after the gas leak at a Vishakhapatnam plant that killed and injured many people. The authority in its guidelines instructed the industries to consider the first week of restarting any machinery or unit as the “trial or test” period. It stated that these units should “not try to achieve high production targets” during this week.

The Ministry of Home Affairs is the nodal department responsible for the coordination of disaster management. Since early 2000, the government has been focusing on developing the capacity of the country for preparedness, prevention, and mitigation. It has also been working to develop the country’s capacity for a prompt response. In the past, NDMA has issued:

  • Guidelines on Chemical Disasters, 2007
  • Guidelines on Management of Chemical (Terrorism) Disasters, 2009
  • Strengthening of Safety and Security for Transportation of POL Tankers, 2010

These guidelines hold relevance for chemical industries. The Manufacture, Storage, and Import of Hazardous Chemical Rules, 1989 under Environment Protection Act, 1986 are the ones that provide these industries with the mandatory statutory requirements.

These guidelines come with two broad categories: generic guidelines and guidelines for specific industrial processes.

Significance of this development

Recognizing the hazard and vulnerability profile of the country combined with the need to protect lives and assets from disasters and to prevent erosion of development gains attained over several years, the Government of India has been systematically addressing various challenges faced by the country. India has been active in pursuing a paradigm shift in disaster management. It has seen success in shifting from a relief centric approach in the past to the current holistic one. The understanding and approach to disaster management, however, remain myopic and need broadening.

There is a need to eliminate the underlying vulnerabilities. It can be possible through the systematic integration of disaster risk reduction in development programs. Such an approach is seeing active pursuance at both the national and state levels. Achieving India’s development and sustainable development goals will not be possible unless we ensure that all these developments are disaster resilient. This would entail putting in place legal instruments, appropriate institutional arrangements, building capacities at all levels to carry out a variety of risk reduction measures, and developing appropriate tools and guidelines.

The main reason stated by the NDMA behind issuing these guidelines was the failure of operators in following the standard operating procedures during several weeks of lockdown. This could have resulted in the presence of residual chemicals in some of the manufacturing facilities, pipelines, and valves among other things. A similar situation is possible in storage facilities with hazardous chemicals and flammable materials.

In the absence of lockout procedures, many energy sources can prove to be hazardous to operators and supervisors. Without periodic maintenance, heavy machinery and equipment can become dangerous. Combustible liquids, contained gaseous substances, open wires, conveyor belts, and automated vehicles are some things that make manufacturing facilities a high-risk environment. Poorly enforced safety codes and incorrect labeling of chemicals are some more health hazards. A rapid response becomes a struggle in case of unexpected events such as the Vizag gas leak. Keeping such disasters in mind, the NDMA issued these guidelines.

The guidelines for restating manufacturing industries after lockdown aim to minimize the risk and encourage a successful restart of the industrial units. These guidelines will play a major role in protecting not only the workers but also the people living nearby. They will go a long way in protecting nature as well as human resources that are at risk during disasters arising from improper maintenance.

Salient features of the guidelines

The NDMA has issued generic safety guidelines for industries and workers, as well as specific industry-based protocols such as product storage and manufacturing.

  1. Generic guidelines

These are the general guidelines that are common for all. These include:

  • Employers must make the employees sensitive and aware of abnormal smells and sounds, leakage, smoke, and other such hazardous signs. Sensitization is essential to minimize the risk as it would help raise a timely alarm.
  • Lockout and Tagout procedures must be properly followed daily especially during the COVID-19 pandemic.
  • All equipment must be inspected according to the safety protocols during the restart.
  • If an industry is facing difficulties in managing crucial backward linkages, they must approach the local district administration for assistance.
  • Industry-specific guidelines:

These guidelines are further divided into four subheads. These guidelines include:

  1. Storage of raw material
  2. Inspection of storage facilities is a must to check for any spills, wear, and tear.
  3. Already opened vessels must be inspected for oxidation, chemical reaction, rusting, and other such issues.
  4. Before entering any storage area, ensure that there are proper ventilation and lighting. Also, check for any strange sounds or smells, exposed wires, and leaks among other things.
  5. Conduct a check on pipes, valves, and conveyor belts for any wear and tear. Similarly, check the whole facility for signs of damage and distress.
  • Manufacturing processes
  • Run a safety audit of the whole unit before initiating activities.
  • Mechanical cleaning of pipelines, equipment, and discharge lines must be followed by flushing with air or water.
  • Equipment such as furnaces, heat exchangers, boilers, pipelines, etc. must be checked for possible wear and tear. The functionality of temperature and pressure gauges also ought to be tested. Manufacturing industries have been specifically directed to undergo three crucial tests, namely the tightness test, service test, and vacuum hold test.
  • Storage of products
  • For industries involved in product storage, the NDMA has directed the checking of storage facilities for any damage or wear and tear.
  • Safety Guidelines for Workers
  • Maintain a sanitization routine every 2-3 hours to ensure the safety of workers.
  • It is mandatory to check the temperature of workers twice a day. Employees with symptoms of Coronavirus are to be barred from working.
  • It is the responsibility of the management to provide sanitizers, personal protective equipment such as masks and gloves to the workers.
  • As per MHA guidelines, administrative and managerial staff should work at 1/3rd capacity. Plus, it must be ensured that no equipment or workstation is shared.
  • Factories also need to provide accommodation to isolate workers, if such a need arises. HR has to help manage the whole process for such an individual. All traveling employees have to undergo mandatory 14-day quarantine.

Are the guidelines binding on parties?

The rise of COVID-19 cases in India led the Central Government to respond by issuing orders for a nationwide lockdown. It has been in effect from 25th March 2020 under the Disaster Management Act, 2005 (DM Act). This order restricts the movement of people as well as calls for the closure of private and commercial establishments. At present, the nation has entered the 4th lockdown. The impact of the closure of various establishments nationwide is visible on both the organized as well as unorganized sectors.

The various orders, circulars and office memorandums issued by the government aim not only to combat the spread of COVID-19 but also to achieve some financial stability. This is why the restart of the industries was allowed.

The Vizag gas leak was a consequence of not following the standard procedures during the lockdown. This was not an individual occurrence. Many other similar accidents have taken place across the country. This has led the NDMA to issue detailed guidelines under the Disaster Management Act, 2005. These guidelines aim to minimize the risk involved in the restarting process.

It must be noted that the orders issued by the Central Government and State Government have been issued under the National Disaster Management Act 2005 and Epidemic Diseases Act 1897.  The violation of these orders will attract a penalty according to the respective Acts. The DM Act provides for imprisonment up to two years or fine (or both) while the ED Act provides for imprisonment up to six months or fine or both.

The circulars issued by different Ministries for integrating national plans and policies and aiding their implementation at a State level still need to be tested on the enforceability front. Now, since the DM Act is in force, let’s check the powers conferred upon it under the Act and whether its guidelines are binding.

Section 3 of the DM Act, 2005 lays down the provisions for the establishment of a National Disaster Management Authority. Section 6 states its responsibilities whereas section 7 talks of an advisory committee to be formed by the NDMA.

Section 8 further provides for the constitution of a National Executive Committee. Section 10 states that this Executive Committee “shall assist the NDMA in the discharge of its functions”. It is further stated that the Executive Committee looks after the implementation of the plans and policies of the National Authority.

Section 24 of this Act empowers the State Executive Committees to take measures as it seems to be necessary to provide relief to the disaster-ridden community according to the steps recommended by the Central Government. Section 30 empowers the District Authority to take all measures necessary for disaster management as per the guidelines of the National and State Authorities.

Section 51 provides for punishment in case anyone obstructs the discharge of functions as laid down by the DM Act.

A study of these sections clarifies the position of NDMA. The guidelines in the present times are mandatory and binding on the parties. They are not to be taken merely as advice or recommendations. They have a legal force behind them as provided by the Disaster Management Act, 2005.

Critical analysis

Disasters are not new to mankind. They have been a constant and inconvenient companion of human beings since time immemorial. The Indian economy has taken a major hit during the lockdown. It was a crucial step towards curtailing the further spread of COVID-19. Now, with no cure in sight, the government has decided to opt for gradual relaxations in the lockdown measures. This will ensure a revival of the economy.

The safety protocols outlined by the National Disaster Management Authority come in the backdrop of the Vizag gas leak. Styrene gas leaked from an LG Polymers plant at RR Venkatapuram village located in Vishakhapatnam, Andhra Pradesh. It affected 5,000 people and killed about 11. Reportedly, due to the failure of the refrigeration unit, the temperature of the tanks rose. The Styrene started evaporating and its gas built up inside the tank. When the plant prepared to resume operation after relaxations were announced, the gas escaped from the tanks and spread in the atmosphere.

Thus, NDMA issued detailed guidelines for restarting industries after lockdown. The main focus of these guidelines is to ensure the implementation of safety protocols and to minimize the risks to people and property. The guidelines state that industries should first have a week of test period wherein they should not try to achieve production targets. It is also said that the employees must be sensitized and made aware of the need to identify abnormalities like strange sounds or smell, exposed wires, vibrations, leaks, smoke, or any other hazardous signs. This will help in taking timely action be it immediate maintenance or complete shutdown.

Hence, the aforesaid guidelines lay the main emphasis on reducing risk. The Ministry of Home Affairs in its letter addressed to the Chief Secretaries of various States and Advisers to the administration of Union Territories has sought strict compliance with these measures. These guidelines are pretty detailed and cover almost all the necessary aspects. But, the real test will come at the stage of implementation. After all, it was a lack of implementation of existing protocols that had led to the Vizag gas leak.

Conclusion

Realizing the loss of lives and revenue, as well as the erosion of development gains, the Government of India amidst the COVID-19 pandemic is actively trying to reduce the risks arising from this pandemic. Its impacts are visible throughout the many different sectors of the Indian economy. To balance the situation, the lockdown needs to be relaxed allowing the restart of industries.

But, it presented a new set of problems as was seen in Vishakhapatnam. So, to minimize the risks arising from the improper maintenance of chemicals for a long time, the NDMA issued a set of guidelines. These guidelines are in the interest of the lives of the citizens of the country as well as the accumulated resources. These guidelines cover almost all provisions by including general as well as guidelines specific to industrial processes. The only need of the hour that remains is their effective implementation. The industries must join hands with the government in balancing the ongoing crisis. They must diligently contribute to boost up the country’s economy and safeguard the lives of the people in every possible way.

Author: Viola Rodrigues from School of Law, Christ (Deemed to be University), Bengaluru.

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

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