Visakhapatnam gas leak incident: NGT holds LG Polymers prima facie accountable, but application of ‘strict’ instead of ‘absolute’ liability may dilute case – Firstpost

As India battles with the COVID-19 pandemic, the individuals dwelling in Visakhapatnam, Andhra Pradesh had been compelled to cope with one other life-threatening hazard. On 7 May, 2020, someday round three am within the morning, a poisonous gas, believed to be styrene, leaked from a chemical plant owned by LG Polymers Ltd. at Visakhapatnam space killing 11 individuals and injuring a number of others.

People rescued from gas leak website. PTI

LG Polymers’ plant is situated in a densely populated locality at RR Venkatapuram. The plant ceased operations in accordance with the nationwide lockdown introduced by the Government of India w.e.f. 25 March, 2020. Reports counsel that the plant was getting ready to begin operations once more when the leak occurred.

The gas unfold over three kilometres affecting 5 villages, viz. RR Venkatapuram, Padmapuram, BC Colony, Gopalapatnam and Kamparapalem. This early morning incident compelled individuals to hurry out of their properties on account of the spreading gas. Footage of individuals on the streets, collapsing on account of being unable to bear the gas and its pungent odor, surfaced on social media. Many individuals are believed to have collapsed inside their properties as nicely.

Immediate response of the authorities

Due to the presence of the gas within the air, the police and medical authorities confronted difficulties accessing the world across the plant even a lot later within the day. However, they managed to maneuver lots of of individuals to safer locations and affected individuals to hospitals. A crew from the National Disaster Response Force was additionally pressed into service to evacuate individuals from close by settlements.

Few hours after the incident occurred, an FIR was filed at about 7 am on the Gopalapatnam Police Station. It didn’t determine the gas which had leaked, nor did it identify any official of LG Polymers. The FIR vaguely states that some smoke got here out of the plant which was foul-smelling and that it endangered life.

National Green Tribunal intervention

The National Green Tribunal (NGT) took cognisance of the gas leak incident and suo motu started a probe into the matter. By an order dated May 8, 2020, the NGT noticed that LG Polymers had prima facie not complied with the provisions of the Manufacture, Storage and Import of Hazardous Chemical Rules, 1989 and accordingly stated that the precept of ‘strict liability’ would apply on this case to find out their liability for the incident.

Based on its monetary place, the NGT ordered LG Polymers to deposit an quantity of Rs 50 crore with the district Justice of the Peace, Visakhapatnam. The firm tried to dispute this quantity earlier than the Supreme Court, nonetheless, acquired no reduction. The NGT additionally arrange a committee to check the incident and submit its report back to the tribunal for its consideration.

Strict liability: an outdated idea?

The suo motu motion taken by the NGT is a welcome step and units precedent for motion to be taken by the tribunal sooner or later in related conditions. However, primarily based on the truth that gas believed to have leaked, i.e. styrene is a hazardous chemical as outlined beneath the Manufacture, Storage and Import of Hazardous Chemical Rules, 1989, the NGT famous that leaking of such a hazardous gas would require the rule of ‘strict liability’ to be utilized in opposition to LG Polymers.

While the NGT’s proactiveness is laudable, the application of the ‘strict liability’ rule is a matter of concern.

The rule of ‘strict liability’ developed within the yr 1866 in a celebrated English case, Rylands v. Fletcher. The rule offers that an individual who brings something on his land which is more likely to trigger mischief if it escapes, retains such factor at his personal peril and is at first look answerable for harm which is the pure consequence of such escape. This rule had a number of limitations. For occasion, it’s relevant solely in case of non-pure use of land. It additionally doesn’t apply to instances the place the hazardous substance escaped because of an act of God or an act of a stranger.

This rule was thought-about by the Supreme Court in M.C. Mehta v. Union of India (1987), which pertained to an identical state of affairs the place one other hazardous gas (oleum) escaped from a plant situated in Delhi. The Supreme Court noticed that the rule of strict liability developed at a time when science and know-how had not developed as a lot because it has right now and it can’t be used to find out the usual of liability now.

On this foundation, the Supreme Court went on to formulate the rule of ‘absolute liability’, i.e. an enterprise engaged in a hazardous or inherently harmful business owes an absolute obligation to the neighborhood that no hurt outcomes to anybody on account of hazardous or inherently nature of the exercise undertaken and that the enterprise shall accordingly be completely liable to compensate for any hurt triggered. The enterprise will be unable to plead that it had taken all cheap care or that there was no negligence on its half.

Therefore, however the truth that whether or not LG Polymers had taken all cheap care or not, beneath the rule of absolute liability, it might be liable to compensate all individuals affected by the gas leak. However, beneath the rule of strict liability, it may be capable of plead that each one cheap care had been taken and no negligence might be attributed to it.

If LG Polymers had been to succeed on such a plea, it might utterly exonerate the corporate from any liability. Accordingly, it might be prudent to use the rule of absolute liability as expounded by the Supreme Court and never the rule of strict liability.

Plant functioning with out environmental clearance

It was additionally reported that the LG Polymers plant in Vizag didn’t have the suitable environmental clearance to run its petrochemical plant for a serious interval of its operation from 1997 to 2019. According to an affidavit submitted by them to the Andhra Pradesh Environment Impact Assessment Authority (SEIAA), the corporate accepted that as of 10 May, 2019, the unit didn’t have a “valid environmental clearance substantiating the produced quantity, issued by the competent authority for continuing operations”.

Obtaining Environmental Clearance is a process to get authorisation from the federal government for set up and modification of sure varieties of initiatives. This course of is obligatory for initiatives which have the potential for inflicting excessive environmental air pollution. A listing of such industries is supplied within the Schedule beneath the Environment Impact Assessment (EIA) Notification 2006. Some examples of industries that require EC are mining, river valley initiatives, thermal energy plant, and so on.

EIA Notification 2006 offers for 2 classes of initiatives — Category A and Category B. These classes are set primarily based on the spatial extent of potential impacts and potential impacts on human well being and pure and man-made sources. Category A initiatives should get clearance from the Ministry of Environment, Forest and Climate Change and initiatives in Category B should get clearance from SEIAA.

The LG Polymer plant fell beneath Category A and was supposed to use for EC from the ministry but filed for clearance from SEIAA. This Andhra Pradesh SEIAA subsequently transferred the application to the Central authorities.

While there may be little readability on the explanations for the gas leak, the delay brought on by LG Polymer to strategy the precise discussion board in addition to the alleged lack of acceptable permissions required to run such a plant may quantity to negligence in the direction of the incident. This negligence, if confirmed, solely furthers the necessity to apply the rule of an absolute liability instead of strict liability to make sure satisfactory reparations to these affected and supply of justice.

Updated Date: May 21, 2020 15:09:11 IST

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