Context: The Visakhapatnam gas leak highlights the need for industries to be extra cautious while starting production after the lockdown.
The Gas leak incident at Visakhapatnam, Andhra Pradesh, in the early morning of May 7, 2020, was not the only industrial accident in the country that day.
In the evening, two boilers exploded at NLC India Limited’s thermal power station at Neyveli, Tamil Nadu, injuring eight people.
The previous day, on May 6, another gas leak accident had taken place at a paper mill in Raigarh, Chhattisgarh, after which seven workers had to be hospitalised.
What’s common to the three accidents is that they happened while the factories were being prepped for opening after the COVID-19 lockdown. Poor operational and maintenance practices during the lockdown and shortage of skilled staff appear to be the common thread in all the incidents.
In its scope and damage, the styrene gas leak at Visakhapatnam was the worst of the three. It left 11 dead while hundreds had to be hospitalised due to difficulty in breathing, headache, fatigue and fainting.
On May 8, the National Green Tribunal took suo moto cognisance and ordered the owners, LG Polymers India Pvt Ltd, to deposit Rs. 50 crore with the district magistrate as an interim penalty for the damage caused to life and habitat. As per an assessment by Delhi non-profit Centre for Science and Environment (CSE), the accident can be attributed to the company’s negligence and failure to adhere to the safety protocol.
What Is Styrene And How Toxic Is It?
Styrene is an organic compound used in the manufacture of polymers/plastic/resins. It is manufactured in petrochemical refineries and is a likely carcinogen. It can enter the body through respiration, but also through the skin and eyes.
According to India’s Manufacture, Storage and Import of Hazardous Chemical Rules 1989 styrene is classified as a “hazardous and toxic chemical”.
Short-term exposure to styrene in humans results in irritation in the mucous membrane and eye, and gastrointestinal problems.
Long-term exposure impacts the central nervous system, leading to headaches, fatigue, weakness, depression, dysfunction, hearing loss, and peripheral neuropathy.
If the concentration of styrene goes beyond 800 ppm, then the person exposed to it can go into a coma. Experts say that immediately after the leak, the levels could have crossed 1,000 ppm in the nearby areas, which is why people started fainting.
Styrene can stay in the air for weeks. It is highly reactive, it can combine with oxygen to form styrene dioxide which is more lethal. The presence of other pollutants can also affect the reactivity.
Response to Disaster:
The most important immediate treatment is to give oxygen to the affected people. The people in the zone also need to be evacuated as long-term exposure can be detrimental to their health. Also, as styrene reacts to form styrene dioxide, the air could remain contaminated for some time. However, the winds blowing from the sea could also help to disperse the gas.
The Vizag accident
The plant was using styrene monomer (C8H8) to produce expandable plastics. Styrene monomer must be stored at temperatures strictly below 17°C.
There was a temporary partial shutdown of the plant owing to the COVID-19 pandemic, excluding maintenance activities, which were being carried out in the plant as per a predetermined schedule. Since styrene was not being stored at the appropriate temperature, there was a pressure build-up in the storage chamber which caused the valve to break. The result was leakage of 3 tonnes of the toxic gas.
On the day of the leak, the levels of styrene in the air in the area were 500 times higher than the prescribed limit. Media reports said they were more than 2,500 parts per billion (ppb), while World Health Organization norms require them to be under 5 ppb. Also, the standard for hydrocarbons in the ambient air is 5 ppb (annual average) according to the CPCB ambient air quality standards.
How the company bypassed safety rules
Industries that process petrochemical-based products, such as styrene, require two levels of clearances—an Environmental Clearance (EC) from the Union Ministry of Environment, Forest and Climate Change (MoEF&CC) and a Consent to Operate (CTO) from the State Pollution Control Board (SPCB), which needs to be renewed every five years.
CTO documents give production limits on products that can be manufactured, limits on treated effluents and ambient air surrounding the factory compound. LG Polymers India has not adhered to rules at both these levels.
As the company has been operating since the 1960s, much before the legislation of the Environmental Impact Assessment Notification of 2006, it was not required to obtain EC unless it expanded its production, changed raw material or modernised its units.
However, the company has been increasing production and changing raw materials since 2004 and has not obtained EC.
In 2004, the expandable polystyrene capacity of the plant was 45 tpd which increased to 65 tpd in 2009, 71.5 tpd in 2012 and 100 tpd in 2014. Similarly, its polystyrene production capacity has increased from 235 tpd in 2014 to 315 tpd in 2017.
In 2017, APPCB warned the company about the need for an EC, saying it would otherwise not grant CTO. After this, the company filed a petition with MoEF&CC seeking an EC. It also gave a proposal to APCCB saying it is importing plastic granules to prepare extended plastic, which may not require an EC. It succeeded in obtaining consent from APPCB, brushing impact assessments studies. In 2018, it withdrew its petition for EC from MoEF&CC saying there were typo errors.
The plant by failing to seek Environmental Clearance has violated informing the competent authorities over two things: One is changing product mix and related impacts, and, two, is the expansion and importing. The expansion means more storage, importing means risk associated with transportation, handling in port-related to loading and unloading and the same in factory premises.
It is also pertinent to note that APPCB has been granting CTO to the company, despite the latter mentioning that it is changing its raw material and expanding the capacity of final products without any EC.
LG Polymers India has flouted general CTO requirements as well. One condition stipulated in CTO is maintaining a suitable system of leak detection and provisions to immediately repair any instances.
Under Point 11 of the general conditions of CTO, the industry is required to maintain Volatile Organic Compound (VOC) analysers with recording facility and maintain records, while Point 19 mandates the installation of a system of leak detection and repair of pump.
LG Polymers did not adhere to both these rules. The VOC detection system at the plant was defunct, and there is no monitoring mechanism to specifically detect styrene. Even the container that was being used to store styrene gas was old and not properly maintained.
Post-lockdown hurry and the deadly fallout
After the Bhopal gas disaster of 1984, India enacted a plethora of laws to prevent such accidents and to issue clear guidelines on the storage of hazardous chemicals in plants. The Environment (Protection) Act, 1986, is the omnibus Act that gives sweeping powers to the Central government to take all measures to protect the environment.
There are clear rules on hazardous chemical storage under the Act. These include Hazardous Waste (management, handling and transboundary movement) Rules, 1989; Manufacture, Storage and Import of Hazardous Chemicals Rules, 1989; and Chemical Accidents (Emergency, Planning, Preparedness and Response) Rules, 1996. That such an accident could happen despite these laws shows negligence on the part of all parties.
The unit in question is also an ISO certified facility, which means it has a protocol for everything. What seems to be the case is that the management, in its haste to restart the plant, ignored the protocol pertaining to maintenance of the plant before resuming operations.
In case the lockdown continues, these safety precautions must not be forgotten. These accidents have shown that as the lockdown ends and industries start resuming activities, there’s a need to be extra cautious.
In its order, NGT has issued notices to APPCB, district magistrate of Vishakhapatnam, Central Pollution Control Board (CPCB), MoEF&CC and LG Polymers India Pvt Limited for their response on the accident.
The court has also appointed a five-member committee. The committee has to report its initial findings on what went wrong, the extent of damage and remedial measures initiated within 10 days. It remains to be seen whether NGT’s order on the Visakhapatnam gas leak will set a precedent to discourage industrial disaster. But the order should not have been silent on the two other accidents. The order also is unclear on whether district magistrate can use the Rs. 50 crore to initiate relief measures.
The surge in industrial accidents in India
With high industrial growth, India is also witnessing an increasing number of industrial accidents and related fatalities. In just two years - 2014-2016 – factory accidents have killed 3,562 workers and injured over 51,000, according to the Labour and Employment Ministry. It means an average of three deaths and 47 injuries every day.
Gujarat, Maharashtra and Tamil Nadu together account for 41 per cent of total deaths in the country due to factory accidents. In case of non-fatal injuries, West Bengal has the country’s highest share at 64.89 per cent of total such cases.
According to the National Disaster Management Authority (NDMA), in the recent past, over 130 significant chemical accidents have been reported in the country, which has resulted in 259 deaths and caused major injuries to more than 560 people.
There are over 1,861 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 thousands of factories, both in organised and unorganised sectors, dealing with hazardous materials. Some of the widely reported accidents in the past five years are:
2014, GAIL Pipeline Blast: On 27 June 2014, 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: This accident in June at Bhilai Steel Plant in Chhattisgarh’s Durg district killed six people and injured over 40. This was due to a leakage in a methane gas pipeline at a water pump house.
Disasters In The Making: Contaminated sites
India has 128 contaminated hazardous sites and another 196 “probable” contaminated sites. It has over 1,400 hazardous chemical units.
Contaminated sites are created when industrial hazardous wastes disposed of by occupiers in an unscientific manner or in violation of the rules prescribed. They may include production areas, landfills, dumps, waste storage and treatment sites, mine tailings sites, spill sites, chemical waste handler and storage sites located in various land uses.
Laws and legalities on industrial accidents
Context: The recent surge in an industrial accident has resulted in the loss of lives, life-long injuries, destruction of property, and adverse impact on the environment. It is about time that stricter norms and provisions are put in place to ensure these incidents do not occur.
India has a plethora of laws and regulations to ensure industrial safety. Penalties for violation of rules and liabilities for accidents are also codified. Below are the key legal provisions that deal with industrial safety and violation of regulations:
1. Under the Indian Penal Code (IPC)
IPC is India’s comprehensive criminal code. This covers all aspects of criminal law and is used for deciding punishment for offences committed within India. The provisions in IPC that pertain to industrial accidents are:
a) Section304A (deals with death due to negligence and imposes a maximum punishment of two years and a fine)
b) Section 337 (causing hurt by act endangering life or personal safety of others)
c) Section 338 (causing grievous hurt by act endangering life or personal safety of others) etc.
2. Under various environmental Laws
After the Bhopal gas tragedy, the Indian parliament enacted many laws to protect and safeguard the environment. Many of their provisions deal with anthropogenic activities including industrial activities. These include:
a) Environment (Protection) Act, 1986: An omnibus act that gives sweeping powers to the Union government to take all measures to protect the environment.
b) Environment (Protection) Rules, 1986
c) Hazardous Waste (management, handling and transboundary movement) Rules, 1989
d) Manufacture, Storage and Import of Hazardous Chemicals Rules, 1989:
d) The Chemical Accidents (Emergency Planning, Preparedness, and Response) Rules, 1996
3. Under judicial scrutiny
National Green Tribunal (NGT) Act, 2010: This Act enables the establishment of special law courts or tribunal with an objective to take up matters and litigations related to the environmental issues. This special court is also formed to carry out expeditious hearings and disposal of cases. It draws mandates from Article 21 of India's constitution that ensures “protection of life and personal liberty and assures the citizens of India the right to a healthy environment”.
Most industrial accidents have been dragged to courts to ensure the right legal actions and deliverance of justice. Presently, most such cases are filed in NGT if they are within the purview of one or more of the following regulations: The Water (Prevention and Control) of Pollution Act, 1974; The Forest (Conservation) Act, 1980; The Air (Prevention and Control) of Pollution Act, 1981; The Environment (Protection) Act, 1986; The Public Liability Insurance Act, 1991; and The Biological Diversity Act, 2002.
For example, in the gas leak accident at the LG Polyester India Pvt. Ltd., NGT applied Sections 14, and Section 15 of the NGT Act to instruct the company in question to pay a sum of Rs. 50 crore, which was determined as per the capacity of the company to pay and the extent of damage caused. Further, since it was a leak of a classified hazardous chemical (styrene gas) NGT has used the Rule 13 of the MSIHC Rule 1989, which requires the occupier to have an on-site emergency plan, to hold the occupier labile. So clearly, in cases where the prosecution happens, different provisions under different acts, rules and notifications are being used to ensure that all perpetrators are held liable for the accidents and also provide the necessary compensations for the damages.
4. Under laws dealing with factories and accidents
a) The Factories Act, 1948: First Act that expressed concern for the working environment of the workers.
b) Factories Amendment Act, 1987: This amendment to The Factories Act, 1948 sharpened its environmental focus and expanded its application to hazardous processes. It brought in provisions to regulate setting up of hazardous units; safety of workers and nearby residents and mandated for on-site emergency plans and disaster control measures.
c) Public Liability Insurance Act, 1991: The Act provides for public liability insurance for the purpose of providing immediate relief to the persons affected by accident while handling any hazardous substance. It imposes a no-fault liability on the owner of hazardous substance and requires the owner to compensate victims of accident irrespective of any neglect or default. For this, the owner is required to take out an insurance policy covering potential liability from any accident.
d) Although the Centre has enacted the Factories Act, 1948, the provisions of which takes care of issues related to the occupational safety, health and welfare of the workers employed in industries registered under the Factories Act, 1948. The state government is responsible for the enforcement of the Factories Act, 1948 and the State Factories Rules. However, the occupiers of these registered factories, in many cases, do not comply with the provisions of the Act and the Rules framed thereunder. Due to this, currently, there are over 46,000 prosecutions within these three years across all states as a result of various factory accidents, of which 29,911 have been convicted.
5. Under relevant legal principles
India adheres to certain principles of “legal liabilities” applicable to industrial disasters. These are relevant to both civil law and criminal law and can arise from various areas of law, including torts or fines given by government agencies.
Principle of absolute liability:
If an industry or enterprise is engaged in some inherently dangerous activity from which it is deriving commercial gain and that activity is capable of causing catastrophic damage then the industry officials are absolutely liable to pay compensation to the aggrieved parties.
The industry cannot plead that all safety measures were taken care of by them and that there was no negligence on their part. They will not be allowed any exceptions nor can they take up any defence like that of ‘Act of God’ or ‘Act of Stranger’.
In other words, under it, a party/company in a hazardous industry cannot claim any exemption. Thus, it is mandatory to pay compensation, whether or not the disaster was caused by its negligence.
This will make such industries provide safety equipment to its workers to prevent any mishap. Therefore, this will safeguard the interests of the workers and will give them a refined, safe working atmosphere.
The NGT Act, 2010 incorporates the “absolute liability” principle through its Section 17. This provision mandates that the Tribunal should apply the absolute liability principle even if the disaster caused is an accident.
6. Other Acts and rules applicable in case of industrial accidents
Besides the Acts and Rules mentioned above, some of the other rules that are applicable are
The Inflammable Substances Act, 1952
The Petroleum Act, 1934 & its rules
The Insecticide Act, 1968 (amended 2000) & its rules
The Explosives Act, 1884 (amended till 1983) & its rules
Reforms Needed In Environmental And Industrial Safety Regimes
It is clear that despite our experiences of a rising industrial accident, and also several judicial interventions, we are yet to deploy them for effective environmental and safety regimes. Following reforms are needed.
More Criminal Suits
The current set of legislations, though comprehensive and covers all aspects, is more inclined towards civil suits than criminal ones. Even though there are provisions for criminal litigation that are applicable to industrial accidents, they aren’t used very often.
Most cases in NGT end up with compensations—the initial one, which is mostly towards the beginning of a case is based on rough estimates in order to provide some immediate relief, whereas the latter being more after considering all the facts and estimating all the damages.
This prevents the justice system to function at a capacity that is lesser than it is intended for. Therefore, there is an urgent need for mandating criminal law along with the civil law for cases related to industrial accidents.
Fixing accountability for an accident or negligent actions is another aspect of the legal system that we often ignore. A suit is usually against a company involved in an accident. But, in such a situation, we let free the company employed individuals – responsible for negligent behaviour.
In some cases, the industry does suspend or terminate their employment but that’s the maximum that it goes to. Therefore, it is important that the person whose negligent behaviour resulted in the damages due to the industrial accident must also be prosecuted under criminal law.
To set this degree of accountability and culpability, we must empower NGT further. NGT is a “quasi-judicial” body and has limited power. It has authority similar to law-enforcement agencies, but it is not like a normal court.
The courts have the power to adjudicate all types of disputes, but NGT has the power of enforcing laws on administrative agencies. Since NGT was created to ease the burden on the normal courts, NGT’s judgements may be appealed to a court of law.
And, in cases of crime and other offences, NGT can only issue recommendations for punishment, depending on the nature and gravity of the offence. However, such punishment can be challenged in a court of law, which is the final authority.
In this context also, the NGT’s role appears to be limited. Therefore, in order to strengthen the deterrence system, it is important to vest more power in NGT.
We do not have a strong regulatory body to ensure proper enforcement of laws and regulations related to industrial accidents. Some of the major improvements that are urgently needed in order to ensure a stronger deterrence for negligence are:
Ensuring more autonomy to the state pollution control boards (SPCB) to work without any sort of influence and micromanagement.
Increasing the manpower and funding to SPCBs, which would allow them to carry out comprehensive and regular inspection of all the industries as per the stated guidelines, especially the ones that are categorised as high-risk ones.
Making stricter guidelines on the current self-monitoring and self-reporting framework by the industries and maintaining a better oversight for ensuring stricter scrutiny of the non-compliance.
Mandating a higher number of regular audit for the industries, especially the ones that are categorised as high-risk ones.
The industries have a major role to play - similar to the legal and the regulatory systems - in the entire process that ensures safety. Industries have to overhaul its working system urgently, especially that is tasked with safety practices. And the senior management that is spearheading the operations of the industry/plant must act as the internal body that provides the necessary deterrence to any industrial accidents in the future.
On-site and Off-site
There is a need to ensure safety at two ends—on-site and off-site. The on-site one involves all the safety of the in-house personnel and workers, and the off-site deals with ensuring the safety and well being of the residents in the surrounding areas as well as the surrounding environment. In most cases, the off-site safety measures are much weaker compared to the on-site ones, which results in much of death and destruction, as in the case of the LG Polymer India Pvt. Ltd.
In order to avert the rising number of an industrial accident, a more thorough approach is required in terms of implementing the existing policies and practices properly. Some important aspects that can go a long way in deterring the occurrence of the industrial accident are:
Better regulatory oversight - One of the most basic and overlooked aspects in the current time is the proper regulatory oversight. The regulators, like SPCBs, are limited in number. Add to it their inability to mount comprehensive and stringent oversight due to budgetary constraints.
Incorporate a working and tested safety and wellness plan - The foundation for a safe work environment is an effective accident prevention and wellness programme. The programme needs to cover all levels of employee safety and health with the encouragement to report hazardous practices or behaviour.
Conduct strict pre-placement physicals - Some accidents are caused by inexperience and the inability to physically perform the prescribed tasks. Screening applicants is a safeguard for placement with the appropriate positions matching their physical capabilities.
Ensuring thorough capacity building of the employees and management staff.
Research safety vulnerabilities.
Ensuring worker safety through well-provisioned personal and other protective equipment.
Ensuring adequate staffing levels - More often than not, overtime hours are implemented because of low staffing levels. Overworked employees may suffer from exhaustion and cut corners to meet or exceed output that may result in accidents. Therefore, multiple shifts or hiring skilled part-time or seasonal staff could help prevent accidents due to exhaustion.
Monitor safety measures - After initial training, reinforce safety measures at every opportunity, i.e. staff meetings, supervision, and education. Rewarding employees who abide by setting high standards or staying injury-free for a specified amount of time will be a great and positive approach to ensure that safety measures are followed.
Having security measures and fail-safes in place - In case of any sudden gas leak or spill, especially of hazardous chemicals (liquid/gas) or hazardous waste, the fail-safes and security measures would provide the immediate counter to those releases or spills, either by containing them through drainage or diversion to another container or area or they will react with them to take away the hazardous nature of the chemical/gas and make it more inert and less harmful to the human and the environment.
Installation of a proper alert system - This is one of the most essential components of the immediate response protocol and can really help prevent higher rates of fatalities and/or damage.
Conducting a thorough HAZOP (HAZard and OPerability) study at regular intervals.
Since the onus is on the senior management, it is their foremost responsibility to ensure that all safety measures are implemented in their entirety, and they are operational all the time. They must hold the concerned duty personnel on-site responsible for any negligence; this ensures a culture of adherence to safety protocol.
Furthermore, the senior management must also undertake independent review and audit of all the systems of the plant, especially with regards to its existing safety systems, and must strive to design and update its SoPs for safety standards and guidelines and mandate it for everyone to follow. These audit reports can be used for improving in-house but can be communicated to the regulatory agencies for better coordination and improved transparency.