gas leak

Abstract:

One of the basic principles of the law is “sic utrere tuo ut alienum non laedas” which means “enjoy your property so that no one else gets hurt”. In some cases and actions, others who violate this maxim may cause harm and injury, such as factories that provide jobs and produce goods for the public. The factory is a social use. At the same time, there are also risks inherent in the production and installation process. There are various scenarios, which usually point to the failure of the legal system, and in particular, the failure of the system to respond to a disaster. The most controversial issues at present are the environmental and industrial populations. Before the eighteenth century, the population and their needs were few and far between. At present, the world population is 5.5 billion, and their needs have increased exponentially.

Introduction of modern technology after the Industrial Revolution:

After the Industrial Revolution, however, modern technologies were introduced to the world. It is growing day by day. As the number of goods and their production increases in each country, industries are being set up to meet the social needs and the growing population. In the process of production of consumer goods, there has been a huge environmental population, which has affected the entire planet.

There have been many gas leakage incidents around the world. Recently, the styrene leak incident “L.G. In Visakhapatnam, Polymer India caused worldwide shock, which left 13 people dead and more than a thousand people suffering from gas. The National Green Tribunal (NGT) has also ordered a fine of Rs 50 crore for polymers. NGT order polymers have turned to Apex Court for refusing to interfere in NGT orders. Those living in nearby villages are the most affected areas. Gas valve failure is the main cause of gas leakage. This type of gas leak can be prevented and proper maintenance can be avoided. There are many criticisms of using strict liability instead of absolute responsibility.

Introduction:

“Protect the land, because we have only one land and give it to our heirs.”                          There must be a balance between social consumption, development, and environmental pollution. Otherwise, this would be a major threat to our homeland.

The problem can be solved by following three ways: (1) banning all such units and structures; (2) allow some sanctions to be imposed, and take precautions for the benefit of the public; And (3) such invaders have taken appropriate steps to prevent such unfortunate events, but to impose penalties on those who failed them and inflict damage on others. This compensation is known as “wrongful liability” or “strict liability”.

The burden of liability, even if there is no wrongdoing on the part of the defendant, is called the “strict liability doctrine”. A well-known case law, “Rylands vs. Fletcher” uses this principle. Therefore, this responsibility is also known as “The Rule in Rylands vs. Fletcher” from 1868. Many dangerous activities pose a constant risk to the person and property of others. Otherwise, the law can deal with them in the following three ways such as (1) Law can completely ban them; (2) Law can allow them to move forward with their social use, but also imposes security measures following legal regulations and sanctions for those who do not. (3) Law allows them to tolerate a condition that they pay without any fault.

The doctrine of strict liability:

The last is the doctrine of strict liability. Those who engage in activities should be compensated for any negligence. The risk inherent like operations is the liability basis. In this aspect, the principle of strict liability is the same as negligence, which is based on foreseeable harm. The difference, however, is that by taking reasonable care of the concept of negligence, the harm that can be inflicted is avoided, so that the defendant does everything he can to prevent the harm, except in such cases. He must finish the job there.

Such consideration is not relevant in strict cases of strict liability, and the defendant is liable, regardless of whether special harm can be avoided by taking precautions. The reason behind the stringent liability is that its return actions pose an extraordinary risk to others, either in severity or in the frequency of the accident. “Permission to perform such a function, the appropriate object of its overhead, is conditional on realizing the cost of the risks it causes.” In this article, we will consider the gas leakage case, the principle used in the case, the reasoning behind the NGT’s order and judgment.

Name of the case:

IN RE. POISONOUS GAS LEAKAGE IN VISAKHAPATNAM

VERSUS

THE STATE OF ANDHRA PRADESH,

DIRECTOR GENERAL OF POLICE OF ANDHRA PRADESH

COMMISSION OF POLICE, VISHAKHAPATNAM

MINISTRY OF INDUSTRIES, UNION OF INDIA

MINISTRY OF ENVIRONMENT AND POLLUTION, UNION OF INDIA

DISTRICT COLLECTOR, VISHAKHAPATNAM

THE SUPERINTENDENT OF KING GEORGE HOSPITAL, VISHAKHAPATNAM

LG POLYMERS LIMITED, VISHAKHAPATNAM

The quorum of the court:

The bench of the court consists of Honourable the Chief Justice Sri Jitendra Kumar Maheshwari and Smt. Justice Lalitha Kannenganti

Citation of the case:

SUO MOTO WP (PIL) NO. 112 OF 2020

Facts of the case:

On May 7, 2020, a gas known as styrene came out of the South Korean chemical plant, known as “L G Polymers India Private Limited” which is located in the port city of Visakhapatnam, Andhra Pradesh. The incident is reminiscent of the Bhopal gas disaster, which is considered one of the most devastating events in the world. Styrene gas is the most combustible and toxic gas used in polystyrene resin and plastic production.

The chemical plant contains 1,800 tonnes of styrene gas. Styrene gas is also known as ethenyl benzene, phenylethane, and vinyl benzene. Inhaling this gas is very dangerous to the health and life of every human being. Under the Environmental Protection Act, 1986, it is defined as a hazardous substance.

Due to the corona lockdown, factory workers were unable to perform cleaning or maintenance work. The report points to a major cause of the gas leak. Thirteen people died and more than 1,000 people were affected by a styrene gas leak. It has also affected the flora and fauna of the region. Those who lived nearby were ordered to evacuate. The National Disaster Response Force (NDRRF) has ordered the evacuation of residents immediately.

Suo moto cognizance by NGT:

While the incident has been widely reported in the media, the NGT (National Green Tribunal) has taken a suo moto action of the incident. Suo Moto is a “self-made” move. The NGT has ordered the formation of a committee headed by a retired Andhra Pradesh High Court. This committee is known as the Joint Monitoring Committee (JMC). The committee is responsible for examining the entire plant, cause of action, loss of lives of injured, affected flora and fauna, and victims’ compensation.

Joint Monitoring Committee Report:

The JMC filed a report on May 28, 2020, stating that LG polymers did not follow basic safety rules and procedures at the Styrene plant. Styrene chemical smell at 0.32 pm in the atmospheric air, the report said.

Once the temperature is increased, the polymerization rate also increases. The committee report states: (1) The tank used in the chemical factory is of old design; (2) For routine maintenance, the chiller system is turned off at 6:00 pm;

Lack of emergency and safety systems:

(3) Either at the middle or the top of the tank, space must be left for vaporization, but there was no pressure monitoring or the temperature monitoring was done in the chemical plant where the gauge of the temperature monitoring was found at the tank bottom; (4) There is no adjustment of the interlock system between cooling systems and temperature monitoring; (5) No external water spray adjustment on the tank in case of rising temperature; (6) There is no automated water sprinkler system. Since this is a dangerous area, manual sprinklers are not even available;

(7) No access to personal protective equipment; (8) No safety preparations to respond to gas leakage; (9) No automatic siren alarms. Manual alarm system with controls in a hazardous area only; (10) An inhibitor called catechol must be stored in a PLA slow reactions. TBC (Tertiary Butyl Catechol) has not been in storage since April 1, 2020, at the LG Polymer Chemical Plant; (11) It has not followed basic safety protocols, nor has the staff and workers been fast in the factory response; (12) The alarm of the gas detector was noted only at 2.54 am by the Control Room where the efforts were started only at 3.03 am by an officer of night duty to reach the fire hydrant sprinkler valves; (13) Sprinklers cannot be activated because they are in a hazardous area;

Post Disaster situation:

(14) One hour and a half later, at 4.30 am, officers wearing self-contained breathing apparatus (SCBA) equipment were able to start the equipment; (15) The Emergency chemicals pumping for the stabilization of the tank was started only at 5.15 am. There were already 800 tonnes of the styrene gas got leaked;  (16) The Factory Inspector and the Fire Officials are not aware of how to deal with such chemical disasters;

(17) Both the District Administration of Vizianagaram and Vishakhapatnam failed to coordinate the efforts of relief and rescue; (18) The injured persons were prevented from feeing and they were forced to stay in one nearby school; (19) The approvals for the building were given for human habitation within 100 meters of the site of the factory; (20) No buzzer zone was left between the village of Venkatapuram and the factory; (21) Failure of the access of the unit as there was a lack of handling experience by trained manpower.

Analysis of the NGT Committee:

According to the NGT Committee, many of the aforementioned major failures have led to such a disaster. The NGT set up committee recommended criminal prosecution of the management of the LG Polymer Chemical Plant. The NGT says the leak attracts the strict liability principle of such hazardous material leakage. NGT has asked LG Polymers to pay Rs 50 crore as a penalty to the Collector. This amount is determined only after the extent of the factor and the loss in the economic value of the chemical plant.            

The affidavit filed by ministry of environment and Forest:

The Ministry of Environment and Forests (MEEF) submitted an affidavit on May 29, 2020, which shows serious repairs towards monitoring agencies. This is because the factory model falls under the category “A”. So, it has to get permission from the central government. The affidavit states that Polymer Plant EC (Environmental Clearance) has applied to the State Environmental Impact Assessment Authority (ECA) for 2018, but has not sent any communication to the Centre for Pollution Control Board of Andhra Pradesh. In December 2021, permission to operate the unit will get expired.

A status report filed by Central Government:

The central government has issued a status report before the NGT. It said that the LG Chemical Plant does not have proper assessment authorities. They also did not have environmental clearance for environmental impact.

Andhra Pradesh High Court Order:

The Andhra High Court has ordered the acquisition of the LG Polymer Chemical Plant due to a gas leak. The court prevented anyone from entering the factory except the committees appointed by the state government. On May 22, 2020, the Andhra Pradesh High Court directed the plant company directors not to leave the country without court permission. He also instructed the concerned authorities not to release the surrendered passports without permission. The court order stated that the company’s assets, mobile and immovable assets, equipment, furniture, and contents are not allowed to move from the plant without court leave. Committees were given the freedom to inspect the plant premises.

Supreme Court’s Decision in the case:

The Supreme Court bench refused to interfere in the orders issued by the National Green Tribunal on May 16, 2020. The apex court granted LG polymers the freedom to ask questions about the gas leak and NGT.

Issues arose in the case:

The issues arose in the case are:

(1) Is the principle of absolute liability or absolute liability imposed on the plant?

(2) Who is responsible for the styrene gas leakage from the plant?

(3) Since the chemical plant is owned by a South Korean company, should the Directors of the company be held liable for losses?

(4) Does compensation only do justice to the dead and injured?

(5) Is the Supreme Court’s non-intervention fair?

(6) Does the company resume its operations without the required legal authorization?

Principles involved in the case:

NGT applies the following principles to restore human life, health, and the environment.

  • Sustainable Development Principle
  • Precautionary principle
  • Pollution Pays Principle
  • The principle of strict liability
  • Sustainable Development Principle:

Sustainable Development is the development that meets the needs of the present without compromising the ability of future generations to meet their own needs. Social and economic development means sustainability in all countries both developed and developing.

  • Precautionary Principle:

The underlying idea behind the precautionary principle is “better safe than sorry”. Precautionary Principle means that if irreparable damage has been caused to the environment consisting of both individuals and flora and fauna, instead of investigating the situation, the remedial measures should be immediately taken. This is called as Precautionary Principle (PP).

  • Pollution Pay Principle:

The principle of ‘pollution pays’ means “The liability should be imposed upon a person who makes the environmental pollution have to compensate the damages caused and should return the environment to the original state irrespective of the intent.

  • The Principle of Strict liability:

The principle of strict liability means that the person is strictly liable for the act though he may not have done an unlawful act in introducing the dangerous thing on to his land. The intent and negligence on his part are irrelevant.

Conclusion:

Applying the doctrine of strict liability, the Tribunal ordered to pay the penalty of Rs. 50 crores to the Collector. As per the strict liability, the person from whom land the cause of action arises is held wholly responsible for the act happened. In this Vizag styrene gas leak case, the styrene gas was leaked from the land of LG Polymers.

Therefore, the owners of the company are reasonable for the act. The owners of the company are strictly liable for the destruction. They caused damage to the individuals, flora and the fauna that existed in that place. The Chief Minister of Andhra Pradesh had given compensation amounting to Rs.1 crore for the families. Providing compensation helps the family of the deceased to survive their lives. But, the persons who are strictly liable for this act of destruction must be criminally punishable under the provisions of Indian law.

We can very well cite the Bhopal Gas Tragedy. The persons who are behind the act of such a disaster is not even punishable that. People have criticized that the court has applied the “Strict Liability”. This case set as a precedent for this Vishakhapatnam gas leak also, where the court applied “Strict Liability”.


Author:

divya mb Divya MB

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