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

As India battles with the COVID-19 pandemic, the people living in Visakhapatnam, Andhra Pradesh were forced to deal with another life-threatening hazard. On 7 May, 2020, sometime around 3 am in the morning, a toxic gas, believed to be styrene, leaked from a chemical plant owned by LG Polymers Ltd. at Visakhapatnam area killing 11 people and injuring several others. [caption id=“attachment_8342481” align=“alignleft” width=“380”]  People rescued from gas leak site. PTI[/caption] LG Polymers’ plant is located in a densely populated locality at RR Venkatapuram. The plant ceased operations in accordance with the national lockdown announced by the Government of India w.e.f. 25 March, 2020. Reports suggest that the plant was preparing to commence operations again when the leak occurred. The gas spread over 3 kilometres affecting five villages, viz. RR Venkatapuram, Padmapuram, BC Colony, Gopalapatnam and Kamparapalem. This early morning incident forced people to rush out of their homes on account of the spreading gas. Footage of people on the streets, collapsing on account of being unable to bear the gas and its pungent smell, surfaced on social media. Many people are believed to have collapsed within their homes as well. Immediate response of the authorities Due to the presence of the gas in the air, the police and medical authorities faced difficulties accessing the area around the plant even much later in the day. However, they managed to move hundreds of people to safer places and affected persons to hospitals. A team from the National Disaster Response Force was also pressed into service to evacuate people from nearby settlements. Few hours after the incident occurred, an FIR was filed at about 7 am at the Gopalapatnam Police Station. It did not identify the gas which had leaked, nor did it name any official of LG Polymers. The FIR vaguely states that some smoke came 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 began a probe into the matter. By an order dated May 8, 2020, the NGT observed that LG Polymers had prima facie not complied with the provisions of the Manufacture, Storage and Import of Hazardous Chemical Rules, 1989 and accordingly said that the principle of ‘strict liability’ would apply in this case to determine their liability for the incident. Based on its financial position, the NGT ordered LG Polymers to deposit an amount of Rs 50 crore with the district magistrate, Visakhapatnam. The company tried to dispute this amount before the Supreme Court, however, received no relief. The NGT also set up a committee to study the incident and submit its report to the tribunal for its consideration. Strict liability: an outdated concept? The suo motu action taken by the NGT is a welcome step and sets a good precedent for action to be taken by the tribunal in the future in similar situations. However, based on the fact that gas believed to have leaked, i.e. styrene is a hazardous chemical as defined under the Manufacture, Storage and Import of Hazardous Chemical Rules, 1989, the NGT noted that leaking of such a hazardous gas would require the rule of ‘strict liability’ to be applied against 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’ evolved in the year 1866 in a celebrated English case, Rylands v. Fletcher. The rule provides that a person who brings anything on his land which is likely to cause mischief if it escapes, keeps such thing at his own peril and is at first glance liable for damage which is the natural consequence of such escape. This rule had several limitations. For instance, it is applicable only in case of non-natural use of land. It also does not apply to cases where the hazardous substance escaped due to an act of God or an act of a stranger. This rule was considered by the Supreme Court in M.C. Mehta v. Union of India (1987), which pertained to a similar situation where another hazardous gas (oleum) escaped from a plant located in Delhi. The Supreme Court observed that the rule of strict liability evolved at a time when science and technology had not developed as much as it has today and it cannot be used to determine the standard of liability now. On this basis, the Supreme Court went on to formulate the rule of ‘absolute liability’, i.e. an enterprise engaged in a hazardous or inherently dangerous industry owes an absolute duty to the community that no harm results to anyone on account of hazardous or inherently nature of the activity undertaken and that the enterprise shall accordingly be absolutely liable to compensate for any harm caused. The enterprise will not be able to plead that it had taken all reasonable care or that there was no negligence on its part. Therefore, notwithstanding the fact that whether LG Polymers had taken all reasonable care or not, under the rule of absolute liability, it would be liable to compensate all persons affected by the gas leak. However, under the rule of strict liability, it may be able to plead that all reasonable care had been taken and no negligence can be attributed to it. If LG Polymers were to succeed on such a plea, it would completely exonerate the company from any liability. Accordingly, it would be prudent to apply the rule of absolute liability as expounded by the Supreme Court and not the rule of strict liability. Plant functioning without environmental clearance It was also reported that the LG Polymers plant in Vizag did not have the appropriate environmental clearance to run its petrochemical plant for a major period of its operation from 1997 to 2019. According to an affidavit submitted by them to the Andhra Pradesh Environment Impact Assessment Authority (SEIAA), the company accepted that as of 10 May, 2019, the unit did not have a “valid environmental clearance substantiating the produced quantity, issued by the competent authority for continuing operations”. Obtaining Environmental Clearance is a procedure to get authorisation from the government for installation and modification of certain types of projects. This process is compulsory for projects which have the potential for causing high environmental pollution. A list of such industries is provided in the Schedule under the Environment Impact Assessment (EIA) Notification 2006. Some examples of industries that require EC are mining, river valley projects, thermal power plant, etc. EIA Notification 2006 provides for two categories of projects – Category A and Category B. These categories are set based on the spatial extent of potential impacts and potential impacts on human health and natural and man-made resources. Category A projects have to get clearance from the Ministry of Environment, Forest and Climate Change and projects in Category B have to get clearance from SEIAA. The LG Polymer plant fell under Category A and was supposed to apply for EC from the ministry yet filed for clearance from SEIAA. This Andhra Pradesh SEIAA subsequently transferred the application to the Central government. While there is little clarity on the reasons for the gas leak, the delay caused by LG Polymer to approach the right forum as well as the alleged lack of appropriate permissions required to run such a plant could amount to negligence towards the incident. This negligence, if proven, only furthers the need to apply the rule of an absolute liability instead of strict liability to ensure adequate reparations to those affected and delivery of justice.