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The Visakhapatnam Gas Leak Case: Lessons Unlearnt From Bhopal Gas Tragedy, 1984

The Visakhapatnam gas tragedy has shaken all of us. Over 11 people have been dead as of now and it has seemingly affected more than 1,000 people within a radius of 3 kilometres of the chemical plant from which the gas leaked. The gas leak took place at a LG Polymer Plant in Gopalapatnam, located on the outskirts of Visakhapatnam.

The plant was being reopened when the gas leak happened. And the probable reason can be the stagnation and temperature changes. Though this incident does not cause disaster but it reminds us of the horrific incident of 1984 Bhopal Gas Tragedy. In these situations, there are certain legal remedies available. The main aim of this article would be to understand the relevant rules in this arena and understand the reason behind such rash and hasty actions by the industrial entities.

The Visakhapatnam gas leak case shows that we haven't learned a lot from the disastrous Bhopal gas tragedy. The gas tank contained 1800 tonnes of the compound and started leaking around 2:30 AM. It spread dangerously around the factory in five villages and claimed many lives. It not just affected humans but also killed cattle, birds, and other animals.

Similar to the Bhopal case, there was no intimation by the factory. The company says that stagnation and change in temperatures have led to self-polymerization and vaporization. But this situation has triggered and started a whole new discussion. Do we really have learned something from our mistakes which cause mass destruction in 1984? The leaked gas is styrene and it is the word of experts that it is inflammable and poisonous and may have triggered a series of explosions.

Also, a person could face inhaling and nervous system problems due to the gas. Short term effects may also include eye-irritation, mucous membrane, weakness, fatigue, and gastrointestinal problems. Also, in the long run, it may result in leukaemia, reproductive problems, and lymphoma. The local people say that though the gas leak has been contained, a pungent smell remains. Exposure to it may lead to chronic health problems.

The question remains, even after so many tragedies like Piper Alpha disaster (1988), Ufa Train disaster (1989), Beijing Gas Leak (2008), Iran Gas Leak (2017), due to exposure of humans to poisonous/dangerous elements, have we learned from our bitter experiences? The answer to this is no. Indian environmental and labour safety regulators are notoriously business-friendly.

It has been revealed by a trade union member associated with the factory that they obtained permission for re-starting the factory over the phone without any inspection, though the factory had been idle for the last 40 days. Also, when the gas leak happened all the workers at the site were inexperienced concerning re-starting the factory. The company seemingly employs only 50 permanent workers and 350 casual and contractual workers which is disproportionate to the number required matching the size and complexity of the unit.

There are various laws and rules regarding the situation available but laws without enforcement mechanism and body are as good as no laws. As the environmental and labour laws are being diluted for Ease of doing business, the risk of these incidents happening is growing substantially.

Let us first understand the statutory rules that govern these situations-

Absolute Liability

Absolute liability also called as no-fault liability is one of the major rules invoked while deciding cases like the above mentioned. In the cases where absolute liability is applied the wrongdoer does not have any defenses which are available in the strict liability cases. 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 defenses.

How did Absolute liability rule originate?

It originated in the case of MC Mehta v. Union of India. This case is generally called the Oleum Gas Leak case. In this case Oleum gas leaked from Shriram Food and Fertilizers Ltd. complex at Delhi. The gas leak had created a lot of panic among people as they had seen the aftermath of the Bhopal gas tragedy. Considered as the world's worst natural 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. Also, 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.

Strict Liability

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 from his land, then he would be liable and the plaintiff does not require to prove negligence on part of the defendant.

Essentials of strict liability:

  1. Dangerous thing
  2. Non-natural use of land
  3. Escape

Exceptions to strict liability

  1. 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.
  2. Plaintiff's consent: When plaintiff gives consent to the defendant's wrong act, then the defendant is not considered to have committed a tort. So, when the plaintiff knowingly consents to being harmed by the defendant, it is assumed that the defendant has not committed any tort.
  3. Act of god: When the escape/tragedy is caused by a natural disaster which is beyond human control, it is called the act of god. E.g. Tsunami, earthquake etc. Any damage due to these acts does not make a person liable under strict liability.
  4. Mistake of Third party: Sometimes damage may be caused due to involvement of a third party. For e.g. Construction work by a third party may lead to some nuisance which may trigger escape of the hazardous element.
  5. Statutory duty: Any person carrying out work of the government is exempted from strict liability as he performed the same as a statutory duty.
  6. 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-Bhopal gas tragedy was the Environment (Protection) Act (EPA) of 1986. EPA is 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 “it 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 thing is getting more serious than it ever was which calls for serious inspection in every company or unit which stores dangerous thing and possess a tendency to escape because while the government is handing out clearances for the sake of increasing ease off doing business, these business units have taken these licenses for granted and these instances will keep on 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 for quality checks whoever is not up to the mark of basic quality standards ask them to wind up their option until they are competitive enough. That is what is formally written with some necessary changes in every license granting agreement but due to lack of foreign exchange and deficit in Balance of payment 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 need of an hour to prevent such tragedies.

The government under the veil of easing out the business norms, supporting industries, and encouraging the 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.

Hence, it's high time to learn from the mistakes we've committed in the past and have strict regulatory bodies and a framework to prevent such cases of negligence to prevent loss of life and property due to industrial disasters in the future.

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