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The Visakhapatnam Gas Leak Case: A case of Strict or Absolute Liability?



Author By Sonika Khandelwal



“The earth is what we all have in common”

- Wendell Berry

This article deals with the recent incident of a gas leak. It analyses and briefs about the current status of different provisions and loopholes in them. It suggests some of the ideal steps to the government to tackle such menace. It also gives a real picture of the incident at the premise of LG Polymer. It is informative in nature providing information about the Styrene gas and its short term effect upon society and the environment.


Recent Gas leak incidents like that of LG Polymer are not new and many more such man-made disasters have taken place in the history of India. To name it Bhopal gas tragedy, 1984, Gail pipeline gas leak in Andhra in 2014, Ammonia gas leak in Kanpur in 2017, Bhilai steel plant gas leak in 2018. Still, mismanagement and failure with SOP compliance continue. After going through such incidents questions arise- Is it really worth becoming an economic superpower at the cost of humanity and the environment? Can monetary compensation ever heal the wound of the victims and their families? Having so many legal provisions like the Environment Protection Act, Environment Impact Assessment, Tortious Liability, and so on, still, we are not able to curb such menace. How a plant can operate without environment clearance for such a long period as in LG Polymer case? Where does the problem lie?

Let’s summarize the incident of LG Polymer gas leak at Visakhapatnam. In the wee hours of May 7th people woke up after inhaling pungent smell of gas causing breathlessness and irritation in eyes. In a short span of time the cloud of vapour engulfed the surrounding areas killing 12 people and hundreds of people were hospitalized. Such was the effect of poisonous gas that scores of people could be seen lying unconscious in the streets; domestic animals found dead. The prima facie case for such a large scale fatality was the leak of Styrene gas from storage tank.

According to the company statement, the leakage was caused due to the malfunction of the cooling system. In a normal situation inhibitor automatically controls the temperature of the storage tank containing Styrene gas. Styrene gas remains in a liquid state only below 20 degrees centigrade. Above this temperature, it transforms into vapor which if mixes with air can spread rapidly in the environment.

Now, let’s see what may be the legal provisions to penalize such companies dealing in hazardous substances. One is that of the ‘Rule of Strict Liability’1 laid down by Justice Blackburn. Quoting him “the rule of law is that the person who, for his own purpose, brings on his land and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his risk; and if he does not do so he is prima facie answerable for all the damage which is the natural consequence of its escape”. Succinctly, three essentials are dangerous/hazardous things, escape, and non-natural use of land. But there are certain exceptions to it – plaintiffs own default, the act of god or vis major, the act of the third party, consent of the plaintiff, statutory authority. This principle was first applied in India by the Supreme Court in 1987 in the Oleum Gas Leak case.

Considering India’s own unique situation Justice P. N. Bhagwati came up with a stricter version of Strict Liability. It is ‘Rule of Absolute Liability’2 where there is no scope of any defences or exceptions. It is even harsher in calculating monetary compensation. SC Relied upon ‘Deep Pocket Theory’ i.e. the larger and more prosperous the enterprise, the greater must be the amount of compensation payable by it.

So, now the question is that in the present case of LG Polymer which rule should be applied – Strict or Absolute liability? Before judging it I would, here, like to consider some of the facts. First, the company had no environmental clearance for the past two decades from 1997 – 2019. Second, the Styrene, the main raw material for producing polystyrene is classified as hazardous and toxic chemical under rule 2(e) of schedule I to the Manufacture, Storage and Import of Hazardous Chemical Rule, 1989. It is also classified as ‘possible carcinogen’ by the International Agency for Research on Cancer. Third, its short term effects are severe as stated by AIIM’s Director. In the case of high inhalation, it can cause Central Nervous System (CNS) depression leading to headaches, dizziness, and even coma. It causes irritation in eyes, in-digestion, nausea, respiratory problems and so on which cannot be ignored. Fourth, in 1987 LG Polymer acquired this unit from McDowell. The main reason given by McDowell for its discontinuation was a dense population of the area where it is located. Fifth, extreme loss of habitat, environment, and health is irreparable. Sixth, there was no safety and precautionary measures taken by the company. After a perusal of the given facts, I must say that rule of absolute liability shall apply to this case and LG Polymer should pay a hefty monetary compensation.

In these times, especially during the global pandemic, countries like India, in a bid to boost investor confidence, are transforming the “polluters pay principle”3 to “pollute and pay principle”. Moreover, considering the conflict of interest between economic development and environmental protection we must follow some middle path. This middle path could be sustainable development which should be given place in every development policy. To sum up, I would like to suggest some futuristic steps to be taken by the government – Focus should be on preventing such mishaps through efficient and effective implementation, proper monitoring, and accountability. The government should end red-tapism. Laws should be clear and unambiguous. Repeated offenders should be blacklisted. The power of NGT should be strengthened by conferring it with enforcement mechanism and power to penalize for its contempt just like the Supreme Court and High Courts. Last but not the least, the judiciary should play a more pro-active role in balancing the environmental, social, and economic needs of people.

1. Ryland v Fletcher (1868) LR 3 HL 330

2. M.C. Mehta v Union of India (AIR 1987 SC 1086)

3. Vellore Citizens Forum v Union of India (AIR 1996 (5) SCC 647); Indian Council for Enviro-Legal Action v Union of India (AIR 1996 (3) SCC 212)

References:

1. Rattanlal & Dhirajlal: law of torts

2. https://indiankanoon.org/doc/1486949/

3. https://indianexpress.com/article/explained/strict-liability-rule-that-ngt-wants-to-apply-in-vizag-gas-leak-case-6404442/

4. https://www.thehindu.com/news/cities/Visakhapatnam/visakhapatnam-gas-leak-how-negligence-and-violations-led-to-a-deadly-disaster/article31761949.ece

5. https://m.economictimes.com/news/politics-and-nation/how-visakhapatnam-gas-leak-sets-off-alarm-bells-in-more-ways-than-one/articleshow/75648391.cms

https://www.downtoearth.org.in/news/pollution/vizag-gas-leak-govt-report-details-short-and-long-term-impact-on-nearby-areas-72343