When news broke of a chemical gas leak at a plant in Visakhapatnam’s RR Venkatapuram village in Andhra Pradesh on the 7th of May, the immediate worry was that this may be a repeat of the Bhopal Gas Tragedy of 1984, with some uncanny parallels on how its events unfolded.
HISTORY OF THE PLANT
The LG Polymers plant, owned by the South Korean firm LG Chem, has changed hands several times since its inception. It was first established by the Mumbai-based Shriram Group in 1961, under the name Hindustan Polymers, to convert alcohol from molasses to produce styrene. Styrene is mostly used in the production of polystyrene, which is used to make the parts of appliances, electronics, and automotive; and also, in food packaging. The Andhra Pradesh government then sold 216 acres of endowment land belonging to Simhachalam Devasthanam in the sparsely populated R.R. Venkatapuram village to the Shriram Group. In 1971-72, the management expanded its operations and began manufacturing polystyrene.
In 1978, the plant was taken over by McDowell and Company Limited of the United Breweries (UB) Group, owned by Vittal Mallya and Vijay Mallya. The UB Group began to manufacture expanded polystyrene. In the early 1980s, the manufacture of styrene was stopped when the UB Group found it less expensive to just import styrene from countries such as Saudi Arabia and Singapore.
LG Chem purchased the plant in 1997. It dismantled the old styrene plant and began storing imported styrene in a few tanks, one of which malfunctioned on the fateful night of May 7. The tank had a capacity of 2,400 mt. On the night of the incident, it contained approximately 1,800 tonnes of styrene monomer, company officials said. LG Polymers, which is facing flak for what appears to be sheer negligence and lack of oversight by the company, refused to take questions despite repeated attempts during that period. It shipped about 13,000 tonnes of styrene from the plant to South Korea immediately after the incident.
WHAT IS STYRENE AND HOW TOXIC IS IT
Styrene is an organic compound used in the manufacturing of polymers, plastic and resins. It is manufactured in petrochemical refineries and is a likely carcinogen. It can enter the body through respiration, but also through the skin and eyes. According to India’s Manufacture, Storage and Import of Hazardous Chemical Rules 1989, styrene is classified as a “hazardous and toxic chemical”. Short-term exposure to styrene results in irritation in the mucous membrane, the eyes, and also leads to gastrointestinal problems. Long-term exposure impacts the central nervous system, leading to headaches, fatigue, weakness, depression, dysfunction, hearing loss, and peripheral neuropathy. If the concentration of styrene goes beyond 800 ppm, the person exposed to it can go into a coma. Experts say that immediately after the leak, the levels could have crossed 1,000 ppm in nearby areas, which is why people started fainting.
The duration of the exposure and its relative concentration will determine toxicity – we currently know that roughly 3 tonnes of gas leaked from its storage tank and the feeding line. We now need to determine exposure. “Styrene can stay in the air for weeks. It is highly reactive; it can combine with oxygen to form styrene dioxide which is more lethal. The presence of other pollutants can also affect the reactivity. On a sudden note operating one reactor in full load can also lead to such disasters.
The most important immediate treatment is to give oxygen to the affected people. The people in the zone also need to be evacuated as long-term exposure can be detrimental to their health. Moreover, styrene reacts to form styrene dioxide, the air could remain contaminated for some time, however, the winds blowing from the sea could also help to disperse the gas.
Similar to Bhopal Gas Tragedy?
The Vizag gas leak, its causes, and the reaction of the management and state are disturbingly similar to the Bhopal gas tragedy. This shows that no good lessons have been learned from the 1984 Union Carbide disaster. Worse, corporations and the administration continue to deploy untrue, non-scientific and empty reassurances to underplay the incident and its systemic causes.
Similar to the Bhopal case, there was no intimation by the factory. The company says that stagnation and change in temperatures led to self-polymerization and vaporization. But this situation has triggered and started a whole new discussion.
Even after countless tragedies: The Piper Alpha disaster (1988), Beijing Gas Leak (2008), Iran Gas Leak (2017), due to exposure of humans to poisonous and dangerous elements, we have not learned from bitter experiences.
How the Company Bypassed the Rules
Industries that process petrochemical-based products, such as styrene, require two levels of clearances—an Environmental Clearance (EC) from the Union Ministry of Environment, Forest and Climate Change (MoEF&CC) and a Consent to Operate (CTO) from the State Pollution Control Board (SPCB), which needs to be renewed every five years. CTO documents give production limits on products that can be manufactured, limits on treated effluents, and ambient air surrounding the factory compound. LG Polymers India has not adhered to rules at both these levels.
The Statutory Rules that Govern these Situations
There are various laws and rules regarding the situation available, but laws without enforcement mechanisms and bodies are as good as no laws. As the environmental and labour laws are being diluted for the ease of doing business, the risk of these incidents happening is growing substantially.
India follows the highest standard of liability for an incident like this when a hazardous or dangerous substance used for industrial purposes leaks and causes harm to people. Absolute Liability Absolute liability also called as no-fault liability is one of the major rules invoked while deciding cases like the above mentioned. Under it, a party or company in a hazardous industry cannot claim any exemption. It has to mandatorily pay compensation, whether or not the disaster was caused by its negligence. When an industry or enterprise is engaged in inherently dangerous work and any other person is affected by the work carried on by the industry, then it would be liable for all the damage caused to those people without any defences. Absolute liability, on the other hand, provides no defence or exemptions and is part of Article 21 (Right to Life).
How did the Absolute liability rule originate?
It originated in the case of MC Mehta v. Union of India. The Supreme Court found strict liability principles inadequate to protect citizens’ rights and replaced them with the absolute liability principle.
This case is generally called the Oleum Gas Leak case. In this case, Oleum gas leaked from Shriram Food and Fertilizers Ltd. complex in Delhi. The gas leak created panic among people as they had seen the aftermath of the Bhopal gas tragedy. Considered as the worst disaster the Bhopal gas tragedy exposed 5,00,000 people to the toxic methyl isocyanate gas.
The gas had many immediate and chronic effects on human health. Hence, when the Oleum gas leak happened, the Supreme Court led by former Chief Justice P.N. Bhagwati realized the importance of laying down a more stringent set of regulations than strict liability. Furthermore, the rule of strict liability originated in the 19th century when industrial developments were at the initial stage had become outdated. Hence, the rule of absolute liability was laid down.
The rule of strict liability originated in 1868 in the case of Rylands v. Fletcher. It explains strict liability as a case when an owner has a dangerous thing in his land, and it escapes. He would then be liable and the plaintiff does not require to prove negligence on part of the defendant.
Essentials of Strict Liability
Non-natural use of land
Exceptions to Strict Liability
Plaintiff's own mistake: When the plaintiff contributed to the harm caused to him due to his own mistake or act, the court reduces the amount to damages payable to the plaintiff by the defendant.
Plaintiff's consent: When the plaintiff gives consent to the defendant's wrongful act, then the defendant is not considered to have committed a tort. So, when the plaintiff knowingly consents to be harmed by the defendant, it is assumed that the defendant has not committed any tort.
Act of God: When the escape or tragedy is caused by a natural disaster that is beyond human control, it is called the act of god. For example, Tsunamis and earthquakes. Any damage due to these acts does not make a person liable under strict liability.
The Mistake of Third-party: Sometimes damage may be caused due to the involvement of a third party. E.g. Construction work by a third party may lead to some nuisance which may trigger the escape of the hazardous element.
Statutory duty: Any person carrying out the work of the government is exempted from strict liability as he performed the same as a statutory duty.
Natural elements on land: E.g. If a poisonous plant grows naturally on the piece of land, the owner cannot be held liable for it.
Environmental Rules v/s The Reality
The first major legislation that came post the Bhopal gas tragedy was the Environment (Protection) Act (EPA) of 1986. EPA became India's first legislation that gave authority to the Centre to issue direct orders to close, prohibit or regulate any industry. It is also an enabling law, which delegates wide powers to the executive, allowing it to make rules to manage different issues. By 1989, the country got the Hazardous Waste (Management and Handling) Rules for management, storage, and import of hazardous chemicals.
In 1987, amendments were made in the Factories Act, 1948, which empowers states to appoint site appraisal committees to advise on the location of factories using hazardous processes. In 1991, the Public Liability Insurance Act was enacted to provide for immediate relief to persons affected by accidents while handling hazardous substances. Under the Act, an environment relief fund was set up to compensate affected people. Despite this legislation in place, India is losing the battle of environmental protection and management of hazardous waste.
According to information sourced from the Union Environment Ministry, the company's proposal was delisted from the environmental clearance portal in November 2019 saying that recite seems that the PP (company) is not interested to continue the project.
The same day another incident happened in Raigad where a paper mill gas leaked and the cleaning workers died. This is getting more serious than it ever was and calls for serious inspection in every company or unit which stores dangerous chemicals and products which possess a tendency to escape. While the government is handing out clearances for the sake of increasing ease of doing business, these business units have taken their licenses for granted which results in these instances increasing if we don't act upon that with quick action.
The follow-up action includes first payment of exemplary damages which would serve as a caution for other business units to quality check themselves and start inspecting every unit on a random basis. That is what is formally written with some necessary changes in every license granting agreement. Due to the lack of foreign exchange and deficit in the balance of payments, the government is providing such clearances with greater ease.
These moves would no doubt increase the number of businesses in India, but the quality is always more preferable than quantity. So, these government policies are no doubt to increase the number of business houses by proportionately decreasing their quality standards. Adhering to the above norms is a condition precedent and needs an hour to prevent such tragedies.
The government under the veil of easing out business norms, supporting industries, and encouraging foreign investments in India, is putting the environment and many lives at stake. Due to this, there has been an increase in cases of negligence by the factories and industries.
It is high time to learn from the mistakes that have been committed in the past and have strict regulatory bodies and a framework to prevent such cases of negligence from repeating to prevent loss of life and property due to industrial disasters in the future.