Context: A gas leak, reminiscent of the 1984 Bhopal tragedy, has recently claimed at least 11 lives and affected thousands of residents in five villages in Visakhapatnam in Andhra Pradesh.
More about the news:
- The source of the leak was a styrene plant owned by South Korean electronics giant LG, located about 15 km from the coastal city.
- This may well be the first incident of mass exposure to styrene worldwide.
- According to the officials, it is still unclear at the moment whether the deaths are due to direct exposure to styrene gas or one of its byproducts.
- Currently the leak has been plugged and NDRF teams moved into the five affected villages and have started opening the houses to find out if anyone was stranded inside.
- The National Green Tribunal(NGT) has ordered LG Polymers India to pay interim damages of Rs 50 crore.
- The NGT has also constituted a five-member fact-finding committee, to be headed by a former A.P. High Court judge, to probe the incident and furnish a report to the tribunal.
Causes of the recent gas leak
- A statement from LG Polymers has said that stagnation and changes in temperature inside the storage tank could have resulted in auto polymerization and could have caused associated vapourization.
- Auto polymerization is the process by which an auto polymer hardens without the application of heat or light.
- In other words the leak occurred as a result of styrene gas not being kept at the appropriate temperature.
- It is a flammable liquid that is used in the manufacturing of polystyrene plastics, fiberglass, rubber, and latex.
- It is also found in vehicle exhaust, cigarette smoke, and in natural foods like fruits and vegetables.
- According to the World Health Organization (WHO) styrene stands at the 20th position out of the 50 most used chemicals globally.
- Organic structure:
- It is an organic compound with the formula C8H8 where C stands for Carbon and H for Hydrogen.
- It is a derivative of benzene (C6H6).
- It is stored in factories as a liquid, but evaporates easily, and has to be kept at temperatures under 20°C.
- Headache, hearing loss, fatigue, weakness, difficulty in concentrating, etc.
- Implications of exposure to styrene:
- Short-term exposure: It can result in respiratory problems, irritation in the eyes, irritation in the mucous membrane, and gastrointestinal issues. It is the mucous membrane that is mainly affected by exposure to styrene gas. In Visakhapatnam, the styrene gas leak caused acute breathlessness among many people, a few of whom asphyxiated to death.
- Long-term exposure: It could drastically affect the central nervous system and lead to dysfunction including memory, visuomotor speed, hearing loss and peripheral neuropathy
- International safety literature cites it as a substance that may cause cancer; there is thus no safe limit for exposure to it.
- Styrene is included in the schedule of the Manufacture, Storage and Import of Hazardous Chemical Rules, 1989. The rules lay down strict norms on how it should be handled and stored.
- Polystyrene is produced by free radical vinyl polymerization, from the monomer styrene.
- It is a versatile plastic that is used to make parts of various appliances such as refrigerators or micro-ovens; automotive parts; and parts of electronics such as computers.
- It is also used to manufacture disposable cups and in food packaging.
About Chemical Disasters:
- Chemical, being at the core of modern industrial systems, has attained a very serious concern for disaster management within the government, private sector, and the community at large.
- Chemical disasters might be traumatic in their impacts on humans and have resulted in the casualties and also damages nature and property.
- The elements which are at highest risks due to chemical disaster primarily include
- The industrial plant, its employees & workers,
- Hazardous chemicals vehicles,
- The residents of nearby settlements, adjacent buildings, occupants, and the surrounding community.
Status of Chemical Disaster Risk in India
- Bhopal gas tragedy:
- India has witnessed the world’s worst chemical (industrial) disaster “Bhopal Gas Tragedy” in the year 1984.
- The Bhopal Gas tragedy was the most devastating chemical accident in history, where over 2500 people died due to the accidental release of toxic gas Methyl IsoCyanate (MIC).
- Statistics of chemical accidents:
- According to the NDMA report, In the recent past, over 130 significant chemical accidents have been reported in the country, which have resulted in 259 deaths and caused major injuries to more than 560 people
- Sensitive areas:
- There are over 1861 Major Accident Hazard (MAH) units spread across 301 districts and 25 states and three Union Territories in all zones of the country.
- Further, there are also thousands of registered and hazardous factories and unorganized sectors dealing with numerous ranges of hazardous material posing serious and complex levels of disaster risks.
- Major chemical disasters, with multiple fatalities, have occurred almost every year since the 1984 Bhopal gas leak disaster.
Recent Major Gas Leaks In India
- 2014 GAIL Pipeline Blast:
- A massive fire broke out following a blast in the underground gas pipeline maintained by the Gas Authority of India Limited (GAIL) at Nagaram, East Godavari district of Andhra Pradesh.
- 2014 Bhilai Steel Plant Gas Leak:
- In this incident at Bhilai Steel Plant in Chhattisgarh's Durg district, six people were killed and over 40 injured in an incident of leakage in a methane gas pipeline at a water pump house.
- 2017 Delhi Gas leak:
- The poisonous fumes spread due to a chemical leak at a container depot near two schools in the customs area of Tughlaqabad depot
- 2018 Bhilai Steel Plant Blast:
- Nine people were killed and 14 others injured in a blast at the Bhilai Steel Plant of state-owned SAIL.
SAFETY INITIATIVES TAKEN IN INDIA TO ADDRESS CHEMICAL RISKS:
The comprehensive legal/ institutional framework exists in India. A number of regulations covering the safety in transportation, liability, insurance, and compensations have been enacted in India.
Overview of Chemical Regulations in India: The following 2 chemical regulations are the most important ones in force in India. We will take a close look at them one by one.
- Manufacture, Storage And Import Of Hazardous Chemical (Amendment) Rules, 1989, 1994, 2000: "Hazardous Chemicals " includes 3 schedules. Regulatory requirements are different for each schedule.
(i) any chemical which satisfies any of the criteria laid down in Part I of Schedule 1 or listed in Part II of this Schedule 1 ;
(ii) any chemical listed in Column 2 of Schedule 2;
(iii) any chemical listed in Column 2 of Schedule 3;
- Ozone Depleting Substance (R&C) Rules (2000): This regulation strictly controls the production, import and use of ozone depleting substances (ODCs) in India. Most of ODCs are banned in India.
Background of legislative framework:
- Provisions during Bhopal gas tragedy,1984
- During this time the Indian Penal Code (IPC) was the only relevant law specifying criminal liability for such incidents.
- The CBI had initially charged the accused in this case under Section 304 (culpable homicide not amounting to murder) of the Indian Penal Code (IPC).
- The charges were later reframed under Section 304A, which deals with death due to negligence and imposes a maximum punishment of two years and a fine.
- Aftermath of Bhopal gas tragedy,1984
- Soon after the Bhopal gas tragedy the government passed a series of legislation regulating the environment and prescribing and specifying safeguards and penalties.
Some of these laws are:
Bhopal Gas Leak (Processing of Claims) Act, 1985
- It gives powers to the central government to secure the claims arising out of or connected with the Bhopal gas tragedy.
- Under the provisions of this Act, such claims are dealt with speedily and equitably.
The Environment Protection Act, 1986
- It gives powers to the central government to undertake measures for improving the environment and set standards and inspect industrial units.
Hazardous Waste (Management Handling and Transboundary Movement) Rules, 1989
- Industry is required to identify major accident hazards, take preventive measures and submit a report to the designated authorities
Manufacture, Storage And Import Of Hazardous Chemicals Rules, 1989
- Importers must furnish complete product safety information to the competent authority and must transport imported chemicals in accordance with the amended rules.
Chemical Accidents (Emergency, Planning, Preparedness, and Response) Rules, 1996:
- The central government is required to constitute a central crisis group for the management of chemical accidents; set up a quick response mechanism termed as the crisis alert system.
- Each state is required to set up a crisis group and report on its work.
Factories Amendment Act, 1987
- Provision to regulate siting of hazardous units; safety of workers and nearby residents and mandates for on-site emergency plans and disaster control measures
The Public Liability Insurance Act, 1991
- It is an insurance meant to provide relief to persons affected by accidents that occur while handling hazardous substances.
- It makes it mandatory for industries to get insurance. The premium for this insurance would contribute to an Environment Relief Fund to provide compensation to victims.
Major Accident Hazard(MAH) Control Rules, 1997
- It has been enacted to prevent such major accidents and to limit their consequences to persons and the environment.
- Schedule 2 and schedule 3 are some hazardous chemicals with assigned threshold quantities.
- When a site handles hazardous chemicals more than the thresholds, the site will be regarded as major accident hazards (MAH) installations and subject to reporting, safety audit and contingency plan requirements.
The National Environment Appellate Authority Act, 1997
- Under the act, the National Environment Appellate Authority can hear appeals regarding the restriction of areas in which any industries, operations or processes or class of industries, operations or processes shall not be carried out or shall be carried out.
- These conditions are subject to certain safeguards under the Environment (Protection) Act, 1986.
National Green Tribunal, 2010
- It provides for the establishment of a National Green Tribunal for effective and expeditious disposal of cases related to environmental protection and conservation of forests.
How will the disaster be similar to the Bhopal gas tragedy tried in India?
- Any incident similar to the Bhopal gas tragedy,1984 will be tried in the National Green Tribunal and most likely under the provisions of the Environment (Protection) Act, 1986
- If an offense is committed by a company, every person directly in charge and responsible will be deemed guilty,
- Unless he proves that the offense was committed without his knowledge or that he had exercised all due diligence to prevent the commission of such an offense.
NDMA guidelines on Chemical Disaster Management
- These guidelines have been prepared to provide the directions to ministries, departments, and state authorities for the preparation of their detailed disaster management plans.
- These guidelines call for a proactive, participatory, multi-disciplinary, and multi-sectoral approach at various levels for chemical disaster preparedness and response.
- NDMA is also working on revamping of CIFs ( Chief Inspectorate of Factories) to strengthen chemical safety in India.
- In addition, MoEF and NDMA are in the process of finalizing the National Action Plan on Chemical Industrial Disaster Management (NAP-CIDM), which will act as the roadmap for chemical disaster management in India.
‘Strict liability principle’ vs ‘Absolute Liability principle’
Strict liability principle
- The recent NGT order has applied the principle of ‘Strict Liability’ against the enterprise engaged in a hazardous or inherently dangerous industry.
About The rule of strict liability
- It has been applied around the world in both civil and criminal law.
- It was first evolved in the 1868 British case Rylands vs Fletcher.
- Strict liability exists when a defendant is liable for committing an action, regardless of what his/her intent or mental state was when committing the action.
- Criticism of the rule: Many jurists have earlier criticized the wide variety of exceptions that allowed defendants to escape accruing strict liability.
- These defenses against the rule include among others– consent, common benefit, an act of a stranger, an act of God, and contributory negligence.
Evolution of Absolute Liability Principle in India
In India, legal opinion turned in favour of adopting a more stringent rule, especially after the Bhopal gas tragedy of 1984. This is referred to as the rule of absolute liability.
Supreme Court in MC Mehta vs Union: Oleum gas leak case of Delhi,1986:
- SC found strict liability woefully inadequate to protect citizens’ rights in an industrialized economy like India and replaced it with the ‘absolute liability principle’.
- Under the “strict liability principle”: A party is not liable and need not pay compensation if a hazardous substance escapes his premises by accident or by an “act of God’” among other circumstances.
- Under the absolute liability principle: The SC held that a 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. The court said a hazardous enterprise has an “absolute non-delegable duty to the community”
- SC also held that The principle of absolute liability is part of Article 21 (right to life).
- Further The National Green Tribunal Act of 2010 has wholeheartedly adopted ‘absolute liability’.
- Section 17 mandates that the Tribunal should apply the ‘no-fault principle’ even if the disaster caused is an accident.
The MAH regulations:
- More impetus is being given to on-site and off-site emergency planning, preparedness, and response. Little or no emphasis is put on hazard prevention and control.
- MAH control rules do not explicitly consider safety management systems, while major accidents that have been occurring invariably point towards systemic failures at the facilities.
- Neither the current regulation nor the industry codes of practice provide sufficient clarity on risk tolerance criteria.
- There is no mention of the “so far as is reasonably practicable" (SFAIRP) or the “as low as reasonably practicable" (ALARP) concept in the MAH control rules.
Faulty audits: At present, the safety audits are primarily focused on occupational safety and health issues and lack sufficient technical rigor.
Legislative framework: At present, various elements of safety are dispersed in various rules that have become antiquated when compared with current industry best practices and community expectations.
Short term measures:
- The Andhra Pradesh state government must focus immediately on the medical needs of those who have been grievously affected by the gas leak.
- Solatium payments and compensation for the victims and families are also important.
- The role and responsibility of the company, the state administration, and the Union ministry must be probed and accountability must be enforced.
Long term measures:
- The current incident of gas leak is a warning for industries across India.
- This is a wake-up call for urgent implementation of the National Plan on Chemical Safety.
- India also needs to initiate training of officers in the Central Pollution Control Board(CPCB) and physicians as well to prevent and mitigate the damage should such incidents recur.
- Need of similar law on the lines of the Civil Nuclear Liability Act, 2010:
- This act deals with instituting civil liability for nuclear damage and granting prompt compensation to victims of a nuclear incident.
- If there are incidents which are not on account of a nuclear incident but because of which a large number of casualty take place, our legal regime even today is only the conventional legal regime that the victims go to a civil court, and then have their remedies adjudicated.
- Need for strengthening the regulations in place:
- It has been highlighted again that the safety of industrial chemicals requires continuous watch, with no scope for waivers.
- As India aims for a wider manufacturing base, it needs to strengthen its approach to public and occupational safety.
- It should be noted that transparent oversight is not a hurdle to industrial growth. It advances sustainable development by eliminating terrible mistakes.
- Re-engineer process safety governance:
- It will include radical regulatory and enforcement reforms, organizational development, and indigenous capacity building within the inspectorates.
- It will also include an on-going safety performance monitoring of MAH units to prevent major accidents.
- Amendment to Major Accident Hazard Control Rules, 1997
- The MAH control rules must define what constitutes a safety management system and demonstrate how its key requirements are being met.
- Bring together the best elements from other acts:
- There are also Acts and rules promulgated by the Petroleum and Explosive Safety Organisation (PESO) and the Oil Industry Safety Directorate (OISD) that are outside the realm of MAH rules.
- There is a need to bring together the best elements from these Acts and rules to develop a cohesive regulatory framework.
- Define individual and cumulative risk tolerance criteria
- Need for audits:
- The audit scope and methodology should be expanded to include auditing of major incident event scenarios and controls identified and assessed for each scenario.
- The audits should seek evidence on the performance assurance of safety controls.
- Investigative and technical rigor should be enhanced in the inspections that are being undertaken by the inspectorate.
- Applications of best practices worldwide:
- It is needed to bring chemical safety at par with the Registration, Evaluation, Authorisation, and Restriction of Chemicals legislation of the European Union.
- The Centre for Chemical Process Safety (CCPS), the Institution of Chemical Engineers (IChemE-UK), the International Labour Institute (ILI), and other international institutions should be invited to participate and contribute alongside Indian institutions to facilitate cross-pollination and skills transfer.
- Following the 4 step cycle of disaster management
To achieve drastic reductions in the frequency and number of major accidents, India should transform its safety regulatory system and build professional capacities. As a side benefit, this will also enable its strong and vibrant chemical and petrochemical industry to become world-class, both in market and safety performance.
Global standards: REACH stands for Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH) is a regulation of the European Union, adopted to improve the protection of human health and the environment from the risks that can be posed by chemicals.
- In principle, REACH applies to all chemical substances; not only those used in industrial processes but also in our day-to-day lives.
- Therefore, the regulation has an impact on most companies across the EU.
- REACH places the burden of proof on companies. To comply with the regulation, companies must identify and manage the risks linked to the substances they manufacture and market in the EU.
- If the risks cannot be managed, authorities can restrict the use of substances in different ways.
- In the long run, the most hazardous substances should be substituted with less dangerous ones.