Monday, May 7. A little past 3 am. The residents of a village in Visakhapatnam woke up smelling something different in the air. There was an unsettling feeling in the atmosphere. Thousands of people ran here and there to save their life, unable to see, unable to breathe properly. Chaos, confusion, shrieks of fear reigned the night in Venkatpuram village. As said, history repeats itself, it did. Yet again, a poisonous gas left 12 dead, and hundreds sickened. The incident made people across the country relive the terror of a similar night, about 36 years ago, the night of the Bhopal Gas Tragedy.
People in Venkatpuram woke up to desperate honking of vehicles and shouts of baffled citizens. The disaster who have costed more lives and been more devastating. Hundreds of lives were saved as an alert resides woke up to see a thick cloud of gas enveloping the colony near the LG Polymer plant. He was quick enough to spread the news in the village and asked them to run for their lives. Soon, the news about a gas leak spread like wildfire and thousands of people into the sheer darkness with a hope of survival.
However, as people began running for their lives, due to the spread of the gas in the atmosphere they started inhaling more and more of the toxic fumes. Styrene monomer is a colorless and inflammable gas. Inhaling it for even a short period can lead to irritation in the eyes, respiratory trouble, nausea, dizziness, unsteady gait, unconsciousness, and other gastrointestinal effects. Many who tried running from the village were seen to collapse on the ground. A disastrous scene was followed when a few young men who tried getting out of the village on their motorcycles, were too disoriented to ride for more than a few hundred meters due to inhaling of the gas.
The Vizag gas leak incident was the worst amongst the many such cases which happened in the near past. Taking the same into consideration along with the devastating impact, the National Green Tribunal took suo moto cognizance of the matter and preliminarily asked the owners of the plan to deposit Rs. 50 crores as an interim penalty for the damages caused to life and habitat. Further investigation was ordered to be carried out to understand the liability, negligence, and failure of stakeholders which led to such a gruesome incident. The gnawing questions that persist remain to be, what exactly happened, and how did it?
THE VIZAG INCIDENT: HOW DID IT HAPPEN?
The world had been at a standstill due to the coronavirus pandemic before the tumultuous night. The LG Polymers Plant was established in Vizag to convert alcohol from molasses in order to produce styrene. Styrene is a poisonous monomer to be stored at low temperatures used to produce a variety of plastic goods. As an upshot from the nationwide lockdown, the plant had imposed a temporary and partial shutdown, excluding primary maintenance which was mandatory to be carried out as per the schedule as predetermined. As a result, of the staggered operations of the plant, styrene was not stored at the requisite temperature which leads to the building of pressure in the storage chambers. Consequently, the chamber could not bear the excessive pressure built up resulting in the leak. What ensued as an outcome was leakage of about 3 tonnes of toxic gas.
As a sequel to the leak in the chamber, the levels of styrene in the atmosphere increased manifold. The plant that is spread over a large land area and is in close proximity to residential areas resulted in higher risks of exposure of humans and animals to the toxic gas. The incident happened at a time when the plant was being reopened to resume work. The very probable reasons behind the incident are stagnation and temperature fluctuation. Prolonged subjugation to such toxic gas can have many short terms as well as long-term health hazards. It would only be with the passage of time that such discoveries could emerge from scientific research.
Understanding what had happened that night and realizing its grave consequences it is important to investigate upon the cause of action. It is pertinent to note here that such an incident has not happened for the first time in India. There have several other occasions in the past wherein similar incidents were time again reported. Thus, before dwelling into the factual matrix of the present case, let us understand the legal framework, then decide upon the liability of the parties, and realize whether we have at all learned from the disasters that occurred in the past.
It is the mandate of the Constitution of India that protection of the environment is one of the primary duties of citizens. Envisaging such a duty, right to clean and environment has been encompassed within Right to Life as provided under Article 21 of the Constitution. There have repeated instances of destruction of biodiversity and wildlife raising a major concern for the depleting nature of natural resources in the country around in the mid of the 1990s. One such incident which shook the entire country and awakened the legal minds to feel the need for dedicated rules for the safeguard of human life and nature, was “The Bhopal Gas Tragedy” where a similar instance of gas leak had cost the lives of thousands of residents of Bhopal leaving behind its traces and perils till date along with the devastation of environment. The capital city of Madhya Pradesh witnessed a similar night of tyranny with the gas leak from the Union Carbide India Limited pesticide limited which took over 15, 000 lives and affected over 6, 00, 000 residents of the city.
In response to the Bhopal gas leak, the Environment Protection Act, 1986 was formulated to tackle the everyday rise of environmental concerns. The main objective of the act was to the protection and improvement of nature and connected matters. Thereafter, various beneficial legislation was brought into to tackle with problems like pollution, degrading air and water quality, protection of wildlife and others. India, emerged as one of the few countries having such a diverse legislative framework for the protection of the environment.
THE LAW FOR LIABILITY
With the evolving jurisprudence, the need was felt to decide on the liability of individuals or industries causing destruction of the environment. The concept relied upon to decide the tortious liability in such instances was “strict liability”. It was unfolded in the 19th century landmark case of Rylands v. Fletcher. It was laid down that when an owner wilfully keeps any dangerous thing on his land, the owner shall be liable for any damage caused by the escape of such a thing. There were certain exceptions to this rule which included instances wherein the damage was caused due to the plaintiff’s own mistake, or the plaintiff had consented to the damage caused or it was an act of God.
In the landmark ruling of MC Mehta v Union of India (Oleum Gas Leak Case), the Supreme Court of India laid down the rule of absolute liability. In the words of Justice Bhagwati, the rule of strict liability in the 19th century, the time when industrial developments were at a very nascent age. The contemporary times witnesses a haul of industrial developments and thus the rule of strict liability falls out of context. Perceiving the need for more efficacious law, the rule of absolute liability was laid down. Perhaps, the rule laid down was to exclude all exceptions available under the rule of strict liability. Any person keeping any hazardous material on his land would be inherently liable for any damage caused to man and environment due to the escape of such material. This rule was further applied in the case of Bhopal Gas Tragedy to decide the liability of the company.
There have numerous judicial decisions where the Courts have pulled upon industries and the State for mishandling and negligence leading to loss of human life and environment. It was directed by the Apex Court to the central government to treat chemical industries distinctly from other industries due to the potential discharge of harmful effluents which ultimately leads to the violation Article 21, and vested in them the responsibility to monitor such industries. Further, in the case of Vellore Citizen’s Welfare Forum v. Union of India two driving principles were laid by the Supreme Court which have now become an integral facet of environmental jurisprudence. Firstly, the Court said the for any damages caused by a polluter, he shall be liable to compensate the victims adequately, as well as be charged for the environmental loss cause, terming this principle as “Polluter Pays Principle”. The other theory was based on the idea of prevention than cure, whereby it was directed that individuals ought to anticipate and foresee reasonably the loses that might be caused to the environment by any of their activities.
Understanding the legal theories and principle that could be applied to the present case, it is time to analyse the factual background of the present incident.
REALITY BEHIND THE LEAK
It is required under law for companies dealing with petrochemical based products which includes styrene to require two levels of environmental clearances from the Union Ministry. There is further a need for Consent to Operate from the State Pollution Control Board which needs to be renewed every five years. The limits of production, treatment of effluents and ambience around the factory are documented under such rules. It is no surprise that LG Polymers did not adhere to either of the above.
A company upon expansion of production or introduction of modernised units is required to obtain EC under the Environment Impact Assessment Notification 2006. LG Polymers despite expansion of production did not obtain such EC since 2004. In 2017, Andhra Pradesh Pollution Control Board warned LG Polymers regarding the need for an EC. Thereafter, an application was filed with the Union Ministry to obtain consent as required by the Pollution Control Board. It is very interesting to know here that LG Polymers managed to get the consent disregarding the assessment studies. For reasons unknown, the petition for EC with the ministry was withdrawn in 2018 on grounds of typographical errors.
In the wake of the Bhopal gas tragedy, there were a plethora of legislations formulated for the preventions of any further such accidents in futures. The Environment Protect Act, 1986 has been the umbrella legislation for the purpose. Sweeping powers have been granted to the central government to take all necessary actions for the cause of environment protection. There have been various rules framed thereafter in pursuance of the powers conferred under the act like the Hazardous Waste (Management, Handling and Transboundary Movement) Rules, 1998; Chemical Accidents (Emergency, Planning, Preparedness and Response) Rules, 1996. Despite all such measures in place, the happening of such an event indicates only one thing; there has been gross negligence on the part of all parties.
Further, the production unit is an ISO certified facility, which manifestly lays down strict protocols for all operations. However, in the haste to resume work, all such protocols were shuteyes to.
ERRIE SIMILARITY WITH BHOPAL GAS TRAGEDY
Immediately after the incident the National Green Tribunal as well as the Andhra Pradesh High Court took suo moto cognizance of the matter. LG Polymers were thereafter ordered t deposit an initial amount of Rs. 50 crores as compensation with the District Magistrate. All concerned stake holders, including the Pollution Control Board and the State were issued a notice by the Tribunal. The High Court further directed the State to take all necessary mitigating measures to ensure relief to the distressed. It further ordered the seizure of the premises and barred the directors from leaving the country. Seems like abundant steps have been taken expeditiously? Well, then the repetition of such an instance proves at inception that there have been faults and fissures on the part every associated party.
There have been unreal similarities with the Bhopal gas tragedy and the Vizag gas leak incident. The company has been constantly trying to deny any kind of fault on their part which led to the accident. There lies a folly of carrying on environment due diligence. The reactions of the State have been unreal and very similar to what had been told after Bhopal had died. The company as well as the authorities continue to deploy empty reassurances and sinister reasons to account for the leak. The best way out has been to point the gun towards the workers for showing dereliction of duty and laxity. Even better, the pandemic is to be blamed for the years of neglect.
It is pertinent to note here that in 2000, a reactor blast took place in the plant fuelling fear and anxiety amongst the villagers. Was there a pandemic then? Oh, then it was probably a worker mishandling the apparatus which led to such happening. Even the PCB inspection gave a clean chit to LG Polymers post the incident. Probably, if they have a bit more stringent that time, 12 innocent lives could be saved. The explanation of the company of some external force leading to the leak is highly uncanny and dubious.
There is yet another coincidence with Bhopal Gas Tragedy. The uncanny similarity of women and children lying unconscious on the road, people struggling to breathe, finding it difficult to move or at the least open their eyes, are all reminiscent of the night in Bhopal. We do have a well-built legislative framework in place, coherent rules, but what is the use when none of it implemented in spirit? Who is responsible for the loss of life and livelihood caused? Will the monetary compensation be enough for the lives lost? Alas! Such questions remain unanswered.
The tragedy came at a time when, the state of Andhra Pradesh was battling hard to beat the rising number of coronavirus cases has been on the rise. Thousands of people were seen to running to safe places even before dawn had set to escape the poisonous gas. The vigilance of a citizen helped prevent what could have taken to the veracity of the Bhopal gas tragedy killing hundreds of people and leaving thousands sick. The reality of the health hazards are yet to come to the forefront eventually due to inhaling the toxic gas. Nevertheless, the company and the State have been underpinning the guilt of the incident upon each other. The only expectation of the affected residents is now from the Courts of the country to hold all stakeholders accurately liable for their laxity in performance of their duties.
With the Supreme Court ordering a stay upon the direction of the NGT the future of the case in Court remains highly unpredictable. However, what can be assured with surety is the fact unless lessons are learnt from the Vizag gas leak there will be further such accidents with an uncanny similarity with incidents of past. Now that, companies have been shut for over two months due to the nationwide lockdown, the likelihood of occurrence of such instances are further aggravated. It is high time for industries as well as authorities to deter now for the better future. Extra precautionary measures are required to be taken before resuming operations for all industries to prevent such mishaps further. The only mantra to be kept in mind hereafter is the old little saying; “a stitch in time saves nine!”
Arya Utkarshni (Symbiosis Law School, Nagpur)
Muskan Verma (New Law College, BVP, Pune)
 INDIA CONST. Art. 48.
 MC Mehta v. Kamal Nath, AIR 2000 SC 1997.
 Madhumita Kesavan, An Analysis of Environmental Jurisprudence in India, 4 JOURNAL ON CONTEMPORARY ISSUES OF LAW 111 (20218).
 (1868) LR 3 HL 330.
 AIR 1987 SC 1086.
 AIR 1992 SC 948.
 Indian Council Enviro-Legal Action v. Union of India, AIR 1996 SC 1446.
 AIR 1996 SC 2715.