Civil And Criminal Process That Ought To Follow The Vizag Gas Leak
Police officers and bystanders outside the LG Polymers plant in Visakhapatnam, Andhra Pradesh, after the gas leak happened on May 7. (Photo: PTI)

Civil And Criminal Process That Ought To Follow The Vizag Gas Leak

A gas leak at the LG polymers Pvt. Ltd. plant near Visakhapatnam killed eleven people on May 7, and affected thousands in the area. Later that day, a senior district official said that a technical glitch in the refrigeration unit attached to two styrene gas tanks at the plant caused the gas leak.

On May 8, the National Green Tribunal took suo moto cognizance of the accident and appointed a five-member panel to look into the matter. On May 9, LG Polymers said in a press release that it has set up a special task force to help victims resolve any issues and provide assistance to the bereaved families.

Following the accident, the National Disaster Management Authority issued safety rules for factories being reopened following the coronavirus-triggered lockdown.

The company is owned by LG Chem Ltd. of South Korea, an affiliate of LG Corp.—the electronics-to-services giant. Earlier known as Hindustan Polymers, the Vizag-based company was established in 1961 and manufactured polystyrene and its co-polymers—used to make plastic products—at the facility in the coastal city of Andhra Pradesh.

Supreme Court advocate Karuna Nundy, who fought for the victims and families of those affected by the 1984 Bhopal Gas Tragedy, spoke with BloombergQuint about the nature of the Vizag gas leak and its fallout.

What legal process should follow, after an incident of this kind?

Let’s look at the three different kinds of liability. First is civil liability. There the standard is absolute liability, and a higher standard as per the oleum gas leak case (MC Mehta v Union of India). The law was made stricter after the Bhopal gas leak. It’s stronger than the previous standard, which was Rylands v Fletcher.

If you have a hazardous substance and it gets released, you are liable regardless of whether you were negligent or not. Either you don’t deal in hazardous substances, or you have to pay for any damage that ensues for this release. The law is very clear on that.

The trouble is, there is a committee that’s just been set up and they are saying that they are looking at the liability of LG Polymers only if there is any negligence. This is just wrong legal standard. They are liable regardless. There is absolute liability.

Secondly, I see that suo moto cognizance has been taken by the Green Tribunal. I think it is very important to make sure that the claims of the survivors—while I think an immediate payout is important—are in no way appropriated by any other body, whether it’s a state body or not. Also, that they are not barred before we know the extent of the damage. The money should be paid and can be paid, but without prejudice to further claims by the survivors. There could be genetic mutations, who knows? Apparently, the styrene containers overheated and exploded the tank.

Everyone’s been going on about how styrene is safe. If that is so, why have 11 people died?

Was there a by-product that was released? Did the styrene change into another form? What happened?

In terms of the evidence I think that even now it is close enough to the golden hour of evidence that the probe needs to careful and needs to have a number of experts on it, who are independent. At the moment, with the system of electoral bonds by which companies can give anonymously give money to governments, the apprehension of bias is there—toward any party. Credible independent scientists should be on it, and the probe should be judicially monitored. Given my experience in the Bhopal cases, the apprehension of malfeasance cannot be ignored.

In terms of criminal liability, I do think that those who appear to be responsible, I don’t think this is the lower-level staff. These decisions would have been taken up to a fairly high level, and you one has to look at the design of the plant. I think that there should be arrests, and at the first instance looking at not just Section 304(A) of the IPC which is the traffic accidents provision, but also Section 300 Part 2 which is culpable homicide not amounting to murder, depending on the nature of the crime.

At this stage, because we don’t know what is happening, these are the provisions that might be applicable. Obviously, the people at LG did not intend to kill anyone. But there is a standard of negligence when there is such extreme harm that happens. So while people should be arrested, the bail provisions should be followed. The rule is bail, not jail.

You’ve spoken of how the gas if deemed as inherently hazardous, the fact that it escaped must be presumed as negligent. Could you explain that construct?

There are particular substances that are deemed to be hazardous. It is highly likely that the gas that escaped was a hazardous substance. The reason that the standard is there…the incentive structures are such, in theory in civil and criminal law, that if you are dealing with say a nuclear reactor or methyl isocyanate [as it was in Bhopal], or the kind of gas that escaped here, you should be following a standard of care that beyond any…that there is absolutely no [chance] that the gas will escape.

Our systems have to make good the promise of the law here. Or else, other commercial units who have hazardous substances will have a lax attitude as well.

Covid shutdown or not, if you know that there is extreme heat and you have hazardous substance in large quantities…just because the owners live in some faraway place, you can’t presume that you’re going to be safe.

You laid out the civil and criminal action…

There’s also regulatory. There also has to be regulatory responsibility. The Chief Secretary Nilam Sawhney said on Friday that there should be greater safety measures taken. Why were there not better safety measures taken before? What was up with the regulatory regime before? Were proper safety audits done? Was the precautionary principle being followed?

Here the regulators will be equally responsible. 

The precautionary principle is that the best technology should be used to make sure that people and the environment are not affected by the hazardous substance.

You’ve explained the state action that should follow this incident on the criminal procedure. On the civil side, state has spoken of ex gratia compensation that it hands out. What other recourse is available for those affected to pursue—the victims and the families of the dead to pursue?

As I’ve said, the absolute liability will be of the company. They should provide an immediate payout without prejudice to any further pay-out that may be claimed by the victim.

How does the liability within the corporate entity get determined? On local officials, the foreign owner?

It gets determined by who made the decision. The attempt will be to fix it on a junior person and claim that it was an accident. In the probe you will need not just scientists but also accounting experts, to look through papers to understand who took the decision that led to the negligence which caused the damage. Were there structural design decisions taken? Should the corporate veil be pierced? The corporate veil should be pierced if there is either a unity of entity—whether they are the same entity, whether one entity effectively controls the other, if there is any fraud.

There are reasons for which the corporate veil can be pierced. This will determine whether it is just the local entities that are responsible or the foreign entities as well.

Is the judicial oversight also important on the part where the regulatory supervision gets probed, so what we don’t have a situation where the administration investigates whether the administration applied regulatory standards effectively or not?

A judicial probe is important for all these reasons. One is because the incentive structure of the regulator who failed or didn’t regulate enough is, as you say, the same as the company’s. The second is because the current structure of electoral bonds means that we don’t know if LG Polymers has given large amounts of money to the ruling party in Andhra Pradesh and or to the ruling party at the centre. So a judicial probe is vital.

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