Environment Protection Act: Vizag gas leak angle

Reading time: 8-10 minutes.

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:

  1. 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.
  2. 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.
  3. Section 3(2): It lays down certain measures that the government can take. They include
  4. planning and execution of a national program for the prevention and control of environmental provisions;
  5. laying down standards for emission or discharge of environmental pollutants;
  6. restriction of areas in which any industries or operations can or cannot be carried out;
  7. laying down procedures and safeguards for the prevention of accidents;
  8. laying down procedures and safeguards for the handling of hazardous substances
  9. 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.

Critical analysis

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.

Conclusion

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.

Thermal plants emission guidelines

Reading time: 8-10 minutes.

Coal-based power plants emit a large range of externalities, which impact the local and regional air qualities, which further have a significant impact on human health. Air pollution occurs when there is a release of harmful particles in large concentrations. Burning coal to produce electricity releases PM10, SO2 (Sulphur Dioxide) NOx (Oxides of Nitrogen) and Hg (Mercury). If the emission trends of thermal power plants remain unchanged, projections estimate that these pollutants are capable of causing an estimated 1.3 million deaths in India per year by 2050

With the primary aim of minimising the effects these four pollutants on air pollution, the Central Government set certain guidelines that were notified by the Ministry of Environment, Forest & Climate Change (MoEFCC) in December, 2015 for coal-based Thermal Power Plants in the country.

The guidelines aim at reducing the emission of PM10, Sulphur Dioxide and Oxides of Nitrogen, thereby, aiming to improve the Ambient Air Quality and also aim at coordinated attempts for conservation of water and make the resources of energy sustainable.

Why was it introduced?

Various studies have suggested that the coal-based power sector has been one of the most critical sectors of the Indian economy. As a result of various studies, including one by the Centre for Science and Environment (CSE), the coal-based power sector was found to be one of the most resource wasteful and polluting sectors in the world. It was also found that our pollution norms were significantly weaker than other major economies, including China, where particulate matter (PM) was five times lesser than that of India.

The study also suggested that almost two-thirds of the plants in India either failed to comply or were unwilling to comply with even the most lenient regulations. As of 2014-15, the power plants used around three-fourths of the coal used in the entire country. India’s coal is of poor quality with almost 40 per cent ash. This means that the use of such coal leads to greater air pollution and is a significant contributor to total pollutants such as PM, NOX and So2 in the country.

Various studies also reported that domestic power plants were inefficient in using fresh water. Their average fresh water consumptions were twice that of the consumption of plants in countries like United States and China. It was estimated, therefore, that is the pattern remain unchanged, the pollution was expected to worsen on multiple levels.

In a Panel Discussion organised by the Centre for Policy Research, it was significantly pointed out that the emissions from Coal Based Power Plants in India contribute to significant air pollution including sulphates, nitrates, mercury and secondary particulate matter, largely formed by SOX emissions. Coal, fly ash and secondary particles from thermal plants and industries in Delhi contribute up to 35 percent of PM2.5 in during Winters and up to 41 percent during Summers.

Since Delhi is in the Indo-Gangetic Belt, the effect of these emissions spreads to areas across Northern Capital Region (NCR), within a radius of 300 kilometres by the north-westerly winds. Research shows that ever since there has been an increase in the particulate matter around Delhi, it has been linked with the presence and growth of coal-based power plants in the region. In addition to this, more than half of the present operational plants are in five states- Maharashtra, Uttar Pradesh, Chhattisgarh, Madhya Pradesh and Gujarat.

Therefore, the central government introduced the revised guidelines in 2015 and these were notified by the Ministry of Environment, Forestry and Climate Change in December 2015. The new standards emphasise on reducing the emissions of these four pollutants but also on bringing an ambient air quality in and around the thermal power plants. The guidelines make reference to the use of technology which should be employed for the control of proposed limit of Sulphur Dioxide and Nitrogen Dioxide and would also help in controlling mercury emissions as a co-benefit. Since these guidelines have at their core, the aim of reducing the use of water in thermal power plants, this will also lead to water conservation as thermal power plant is a water-intensive industry. This is aimed at further reducing the usage of energy for the drawl of water.

Salient features of the guidelines

The Guidelines have several significant features:

  • Categorisation of thermal power plants into three categories

According to these guidelines, Thermal power plants are categorised into 3 categories, namely: Those Plants that are installed before 31st December, 2003, those Plants that are installed between 2004 and 31st December, 2016, and those Plants that are installed after 31st December, 2016, i.e. in and after 2017.

  • The new guidelines make addition to the existing guidelines

While the previsions and/or existing guidelines before 2015 governed on the PM emissions, the new guidelines aim at reduction of emissions for all major pollutants – PM, SO2, NOx and mercury emissions (Hg).

  • Specific regulations for plants installed in and after 2017

Under these regulations, plants installed in and after 2017 are required to meet Particulate Matter emission standards of 30 mg/Nm3, i.e. an 80 per cent reduction over the norms that existed prior to the 2015 norms. These new plants installed in and after 2017 are also required to install pollution-control equipment such as Flue Gas Desulphurization and low NOx burners to meet the standards, while the older plants (i.e. ones established priori to 2017) are required  to meet considerably looser standards, based on their age, due to both economic considerations and technical challenges involved.

  • Regulations in terms of water usage

The guidelines aim to remarkably reduce the withdrawal of freshwater by thermal power plants. This is intended to decrease the cumulative freshwater withdrawal by 80 per cent from around 22 BCM in 2011-12 to around 4.5 BCM in 2016-17. The norms will require all freshwater-based once-through-cooling (OTC) system plants to install water-efficient cooling towers that consume up to four cubic metre per watt hour (m3/MWh). Furthermore, existing cooling tower-based plants are required to restrict water consumption to 3.5 m3/MWh and plants that set up after January 2017 are required to achieve 2.5 m3/MWh as per the guidelines of 2015.

  • Regulations in respect of fly ash

Since the utilisation of fly ash from power plants has been far below the 100 per cent target that was supposed to be achieved by 2014, the government introduced draft amendments in March 2015 to push fly ash use. The proposed notification mandated the construction activities, i.e. buildings, roads and flyovers, reclamation and embankments, within 500 km of power plants to use only fly ash. The power plants were also required to provide fly ash for free to construction agencies and to transport it at their own cost up to 100 km for private users and up to 500 km for government projects.

  • Compulsory upgradation of supercritical technology

In addition to the features mentioned above, as per the action plan on which these guidelines are based, the Ministry of Power announced its plans to mandate supercritical technology for Ultra Mega Power Projects (UMPPS) as well power projects during the 13th Five Year Plan period, however, almost 40 GW of the 87 GW capacity projects under construction are subcritical. Subsequently, the power ministry also announced plans to shut down around 36 GW of old capacity that is inefficient.

Critical analysis

  • Power deficiency and idle power plants

Electricity is central to India’s developmental efforts. However, it is a fact that almost one-fourth of our population lives without access to electricity. Our per capita consumption of electricity is also considerably low, at almost a third of the world average with millions getting power a few hours a day. Surprisingly, the plant load factor (PLF) for power plants has steadily declined over the last two years and was only 63.60 per cent in September 2015. PLF is the ratio between the actual energy generated by the plant to the maximum possible energy that can be generated with the plant working at its rated power capacity for a given duration.

The reason behind the low Plant Load Factor (PLF) could to be the increase in total capacity as compared to the growth in demand. Coal shortages and grid problems are also responsible. But a more fundamental problem is the dysfunctional nature of distribution companies (DISCOMS)—inefficiently run with huge losses, they don’t have the money to buy power and supply it to people. Meanwhile, huge generating capacity lies idle.

This further aggravates the issue of pollution. DISCOMS prefer buying from the older, more polluting power plants because their electricity is cheaper than that generated by the new plants. This happens because the old plants are fully depreciated and, as a result, their input cost is lower. However, in the process, these old industries which supply cheaper electricity continue to produce more which leads to deterioration of the air quality even further, despite there being regulations in place.

  • Lack of emphasis on the functioning of old plants

While the introduction of standards for new plants has been beneficial, the lack of updated guidelines for existing old power plants has led to unrestrained pollution by the old plants, which contribute to the bulk of the environmental impacts. Without stricter regulations with regards to old plants, there will be little incentive to invest in improved technologies because the industries would tend to rely on the activities of older plants because they are cheaper and do not require spending huge amounts of money on the installation of environment-friendly technologies. Therefore, it is suggested that the guidelines be introduced in terms of imposition of stricter regulations for existing plants as well as in order to have a comprehensive implementation of the policy.

  • Failure to impose ambitious timelines

It is worth noting that the power sector has in the past failed to impose its targets in the ambitious timelines. In the last several plan periods, coal-based power capacity expansion was well below the targets.

The new guidelines required installation of cooling towers at numerous plants; SO2 control would require installing flue-gas desulfurization(s) within two years of the issuance of the guidelines, i.e. by December, 2017. Regulators were required to establish clear milestones and ensure close supervision to ensure implementation of these rules. This, given the short deadlines and the huge expenditure on technologies and capital assets that these guidelines maintain has been a problem in the Indian Context and has not been implemented despite attempts by the government in this regard. The primary cause of such a failure is the impracticable deadlines that have been enforced upon the industries and power plants that come under the ambit of the said guidelines.

  • Non-compliance of these guidelines and its impacts

Based on a report by Greenpeace India, based on the data collected from the Central Pollution Control Board (CPCB) via Right to Information (RTI), it is worth noting that India would have reduced 48% of SO2, 48% of NOx and 40% of PM emission respectively if the coal power plants had complied by the Thermal Power Plant emission standards of 2015. Therefore, it is suggested that in order to enhance the accountability and complian the progress for retrofitting the power plants should be made available to the public. The suggested measure would help in maintaining the transparency of actions taken by various authorities with respect to the new timeframe scheduled for the power plants.

Conclusion

The environmental guidelines notified by MoEFCC in December, 2015 are intended to reduce emission of SO2, CO2, particulate matter and mercury from thermal power stations, since thermal power plants are major contributors of these pollutants. Despite deferment of timelines for compliance of the new norms from December, 2017 to (a) December 2022 for all thermal power stations and (b) December, 2019 for the power stations located in NCR, rate at which implementation of emission control systems in the power stations has taken place, is far from satisfactory.

However, since the central government issued the Thermal Power Plants Emission Guidelines in 2015, a number of positive developments have also taken place. These include the following:

First, Central Electricity Regulatory Commission (CERC) Tariff Regulations, 2019 has issued guidelines specifying the modalities for submission of additional capital expenditure on account of revised emission standards, factors to be considered by the Commission for approval of the same and the admitted expenditure on this account forming the basis of tariff determination.

Second, Central Electricity Regulatory Commission has also allowed the cost claimed by the petitioner in the event of the same having been discovered through competitive bidding.

Third, Central Electricity Regulatory Commission regulations also provide for consideration of additional capitalisation and additional operation and maintenance expenses on account of implementation of revised emission standards in existing or new generating stations in their tariff.

Lastly, Central Pollution Control Board has been strictly monitoring the air pollution status of 102 most polluted cities in India. In this regard, the National Green Tribunal (NGT) has given power to Central Pollution Control Board (CPCB) to impose penalties on industries not complying with the norms. CPCB has already issued notice, to all the thermal power stations in NCR.

It is therefore submitted that Plants that do implement the pollution-control technology need to be monitored to ensure that standards are being met. Although, the installation of pollution-control technologies is key in ensuring health benefits due to better air quality, there is a need for the Government to address the financial burden of pollution-control technologies (PCTs) on end-consumers.

The Government can provide subsidies and incentives to Thermal Power Plants so that they are encouraged to follow these guidelines and the objectives of these guidelines can be more successfully met. In addition to this, there is need for the government to introduce measures to make the role of different stakeholders more transparent and accountable measures in order to implement these guidelines.

Author: Priyanshu Grover from Symbiosis Law School, NOIDA, Uttar Pradesh.

Editor: Tamanna Gupta from RGNUL, Patiala.