Vizag Gas Leak: Ignorance of Safety Standards or Lack of Insight from Bhopal Gas Tragedy? – By Clarion Legal

While the nation was under a lockdown due to the COVID-19 pandemic, styrene gas leaked through the storage tank of the LG polymers plant in Vizag, Visakhapatnam in the early hours of May 7^th, 2020 when the plant was about to restart after relaxation in lockdown norms. The gas leakage which claimed 11 lives and left several others injured brought reminiscence of the 1984 Bhopal Gas Tragedy.[1] The disastrous impact of the leaked gas on the environment and thousands of lives which are exposed to it is not beyond comprehension. It appears that even after three decades of one of the world’s worst chemical disasters we failed to learn anything significant, leading to the Vizag Gas leak on similar lines. Fortunately, the damage to human life and ecology, though irreparable, is still not close to the scale of the Bhopal disaster.

Comparison between the two chemical disasters

In the Bhopal tragedy Methyl Isocyanate (MIC) gas leaked from Union Carbide India Limited’s (UCIL) plant in Bhopal. The safety device designed to neutralize the discharge of the gas was turned off three weeks before the actual leakage and a faulty valve led to tons of water mixing with the toxic gas leading to an exothermic reaction in the storage tank which caused the leakage.[2] However, till this date, there has been no definitive answer as to what caused the leakage of toxic gas, the government has largely put the burden on negligence in maintenance and workers’ irresponsibility.[3] The recent styrene gas leak in LG polymers plant, owned by a South Korean Company, could be attributed to a similar situation wherein the plant has been shut down due to the nationwide lockdown and the temperature of the storage tank of styrene gas could not be maintained at appropriate temperature leading to vaporization of gas resulting in the leakage,[4] demonstrating lack of proper maintenance.

Following the Bhopal disaster, several individual claims for compensation were filed in the American Court against Union Carbide Corporation. Later on, the Central Government took the responsibility to represent the claims of those affected by the disaster,[5] but the American Court referred the case to Indian Court on grounds of forum non-convenience.[6] The Supreme Court of India ordered a settlement at an amount of US $470 million between the Union of India and Union Carbide Corporation wherein the responsibility of allocating the amount amongst the proposed victims vested with the central government.[7] Several questions and review petitions were filed against this settlement ordered by the Apex Court which set aside the criminal liability of the industry but the Apex Court upheld the validity of the settlement as well as the Bhopal Act, 1985 which authorized the Central Government to be representatives of the claimants.[8] Furthermore, in another petition for criminal prosecution against the Corporation, the Supreme Court held that there is no prima facie evidence to form a charge against the Corporation under Section 304A IPC and overlooked all the negligent behaviour and lack of implementation of safety measures on the part of Corporation.[9]

Due to the pro-environmental measures taken after the tragic Bhopal Disaster, National Green Tribunal formulated under the NGT Act, 2010 took suo moto cognizance of the Styrene gas leak case in Vishakhapatnam and ordered LG Polymers Ltd. to deposit an initial sum of Rs. 50 crores by applying the principle of ‘Strict Liability’ against the hazardous substance industry.[10] This application of strict liability principle in the Vizag Gas leak case by NGT has raised another debatable issue over the non-application of ‘Absolute Liability’[11] the principle, which entails that if any industry is engaged in ‘hazardous substance’ then it shall be liable for any damage caused due to the escape of such substance irrespective of any exceptions. Absolute Liability had been recognized by the Apex Court as the law of the land in the Oleum Gas Leak Case 1987 and is regarded as a better alternative to strict liability principle,[12] however, the current NGT order attracting ‘Strict liability’ of LG Polymers may provide an opportunity to the Corporation to dodge the liability by devising exceptions to the Strict Liability doctrine.[13]

India’s approach to deal with Chemical Disasters has largely been compensatory thereby neglecting the long-term medical and socioeconomic effects of such disasters.[14] In the Bhopal Disaster, the victims were promised a hefty sum of compensation by way of settlement ordered by the Apex Court, however, till 2003 only half of the sum dispersed to the victims while an estimated 30% of the sum was lost to bureaucratic corruption.[15] The plight of the victims to claim compensation is still unheard even after 32 years of the incident and the number of claimants seeking the ordered compensation has seen an increment due to the long-term effects of the gas leak. This setup showcases that the entire system favours big corporations to ensure economic prosperity instead of serving the needs of the victims.

The plight of victims in the recent Vizag gas leak is not different from the previous occurrence, as several petitions were filed in the Andhra Pradesh High Court seeking appropriate medical and financial aid from the LG Polymers Ltd for the styrene gas leakage, however, the court has ordered the premises to be sealed with no definitive order on the compensation.[16] While NGT had ordered interim amounts to be deposited by the perpetrator industry, however, there is no definitive timeline to assure when the victims will be provided with the compensation. The lack of proper implementation authority and red-tapism leads to the utter failure to attain justice in these chemical disaster occurrences.

Significant legislative measures after the Bhopal Disaster and its impact on Vizag situation

During the Bhopal Gas Tragedy, the Indian Penal Code was the only authoritative law to govern these types of gas leakage incidents by charging the industry with the criminal negligence, culpable homicide not amounting to murder, and causing hurt and endangering the life of others,[17] however, the law has not proven effective to achieve the ends of justice as the Apex Court had dropped the criminal charges against the Industry. Thereby, taking insights from the negligence evident from the Bhopal Disaster, Central Government took the pro-environmentalism approach and adopted various legislation to safeguard the environment and mitigate future disasters-

Despite such laws in force, the Vizag Gas Leak incident highlight that there certainly are some loopholes in the enforcement of these laws. It has been claimed that Styrene falls within the category of Hazardous chemicals provided in the Hazardous Chemicals Rules, 1989,[23] but the LG Polymers Ltd. dodged the legal norms provided by the legislature and even violated the provision of complying with the emergency response mechanisms under the Rules, 1989.[24] Apart from this violation of the legal norm, the culprit LG Polymers has admitted that it lacked environmental clearance for the manufacturing unit of Vizag as contemplated under the Environmental Impact Assessment Notification, 2006 of the Ministry of Environment and Forest.[25] Taking note of these kinds of incidents, one can readily understand default is not of the legislative capacity rather the enforcement agencies had been creating a mockery of the legislative measures.

Conclusion

A simple analogy of the two chemical disasters that lead to widespread loss of life indicates that India has still not learned anything from its past experience and the plight of victims of such chemical disaster is never resolved appropriately. Despite the enactment of enormous legislative measures to combat the aftermath of the Bhopal Tragedy, the current negligence and bypassing of legal norms suggest that future occurrences of such incidents are inevitable. Amidst the recent Vizag Gas leak, the Andhra Pradesh Government claims to formulate a new law for imposing heavy penalties on violators of environmental norms,[26] but the Government has significantly forgotten that such incidents do not occur due to lack of proper laws, rather due to inefficient enforcement agencies. 

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[1] Nityanand Jayaraman, Vizag gas leak very similar to Bhopal tragedy. India must probe before blaming workers, The Print, May 7, 2020.

[2] Edward I Broughton, The Bhopal disaster and its aftermath: A review, Environmental Health: A Global Access Science Source 3 (Feb. 2005).

[3] Harmandeep Singh and Arvind Rehalia, Case Study: Bhopal Gas Tragedy, 2 (6) INTERNATIONAL Journal of Advanced Engineering Research and Applications (Oct. 2016).

[4] Sundaram Ramanathan, Nivit Kumar Yadav and Digvijay Singh Bisht, Vizag gas leak: Who is liable, Down to Earth news, May 7, 2020.

[5] The Bhopal Gas Leak Disaster (Processing of Claims) Act, 1985, No. 21, Acts of Parliament, 1985, § 3.

[6] Bhopal Gas Tragedy 1984, A report from Sambhav Trust, Bhopal, India 16 (Nov., 1996), http://www.unipune.ac.in/snc/cssh/HumanRights/10%20STATE%20ENVIRONMENT%20%20SCIENCE%20AND%20TECHNOLOGY/B%20bhopal%20gas%20tragedy/10.pdf.

[7] Union Carbide Corporation v. Union of India, (1989) 1 SCC 674.

[8] Charan Lal Sahu v. Union of India, (1990) 1 SCC 613.

[9] Keshub Mahindra v. State of Madhya Pradesh, (1996) 6 SCC 129.

[10] In re Gas Leak at LG Polymers Chemical Plant in RR Venkatapuram Village Visakhapatnam in Andhra Pradesh, National Green Tribunal, Principal Bench, New Delhi, Order dated 8.05.2020, Original Application No. 73/2020, available at https://greentribunal.gov.in/orderpdf/orderlist.pdf.

[11] M.C. Mehta v. Union of India, AIR 1987 SC 1086.

[12] Id.

[13] Arnav Sharma and Dr. Anita Yadav, Vishakhapatnam And Bhopal: A Look at Our Morbid Past on the Road To Justice, Live Law Columns (May 23, 2020).

[14] Sally Howard, Bhopal’s legacy: three decades on and residents are still being poisoned, 349 BMJ: British Medical Journal (Dec. 8- Dec. 14, 2014).

[15] Id. at 2.

[16] Devika, Vizag Gas Leak Incident| A.P. HC | LG Polymers to be seized and passports of directors shall not be released without leave of Court, SCC Online blog (May 26, 2020).

[17] S. Muralidhar, Unsettling truths, Untold Tales, The Bhopal Gas Disaster Victims ‘Twenty-Year’ of Courtroom Struggles for Justice [Bhopal Gas Leak Disaster- Legal Issues] (2004), http://www.ielrc.org/content/w0405.pdf.

[18] The Environmental (Protection) Act, 1986, No. 29, Acts of Parliament, 1986, § 3.

[19] The National Green Tribunal Act, 2020, No. 19, Acts of Parliament, 2010, Preamble.

[20] The Public Liability Insurance Act, 1991, No. 6, Acts of Parliament, 1991, Preamble, § 3.

[21] The Factories (Amendment) Act, 1987, No. 20, Acts of Parliament, 1987, § 41B.

[22] Manufacture, Storage, And Import of Hazardous Chemicals Rules, 1989, Ministry of Environment and Forests (Department of Environment, Forests, and Wildlife) Notification (Nov. 27, 1989).

[23] Id. at Schedule I, Entry 583.

[24] N.D. Jaya Prakash, Toxic Chemical Leak at LG Polymers India, Yet Another Harrowing Experience: No Lessons Learned from Bhopal, The leaflet (May 25, 2020).

[25] Vizag LG Polymers Plant Lacked Environmental Clearance Before Chemical Gas Leak, News18 (May 13, 2020), https://www.news18.com/news/india/indian-lg-polymers-plant-lacked-environmental-clearance-before-chemical-gas-leak-2617449.html.

[26] PV Ramana Kumar, After Vizag Gas Leak, Andhra to Frame New Law for Environment Protection with Heavy Fine for Violators, News18 ( (May 21, 2020), https://www.news18.com/news/india/after-vizag-gas-leak-andhra-to-frame-new-laws-for-environment-protection-with-heavy-fine-for-violators-2629877.html.

Disclaimer: The views or opinions expressed are solely of the author.