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The National Green Tribunal (NGT) bench headed by Chairperson Justice Adarsh Kumar Goel has, on June 8, directed to make an interim deposit of Rs. 25 crore as penalty. Other members of the NGT presently include Justice SP Wangdi and Dr Satyawan Singh Garbyal (expert member)
On June 3, a mysterious explosion took place in Yashashvi Rasayan Private Ltd (YRPL) chemical factory at Dahej in Bharuch, Gujarat. Reportedly, the blast was caused due to a reaction between two containers on account of some chemical process. The blast has led to deaths of 10 persons
The order is to deposit an amount minus the statutory compensation/ex gratia payments already made to the victims, if any, with the District Magistrate, Bharuch within 10 days from the date of order. The NGT has held the company strictly and absolutely liable for the loss caused due to the blast.The company has been asked to pay Rs 15 lakh to family members of each deceased, Rs 5 lakh each to those grievously injured, Rs 2.5 lakh each to the injured, and Rs 25,000 each to those displaced from their homes due to the incident.
The Tribunal has also constituted a 6 members committee headed by former High Court judge Justice BC Patel and the report is expected in a month.The panel will examine the sequence of events, causes of failure and those responsible for it; the extent of damage to human and non-human life and public health and environment; steps to be taken for compensation; and restoration of damaged property and remedial measures.
“The amount may be disbursed by the District Magistrate by making disbursement plan. Disbursement plan may consider safeguards to ensure that amount reaches the beneficiaries and is not misappropriated by any intermediary,” the bench said.
The order further reads, “If the company fails to make the deposit, the State will be at liberty to recover the same by coercive methods but the disbursement may in such case be made out of the State funds within one month with right of the State to recover the amount from the company.”
The bench also pointed out that since a similar incident took place in Vishakhapatnam, “it may be necessary to ensure that risk studies are duly undertaken by all industries in the country dealing with the hazardous chemicals and their on-site and off-site plans are operational and mock drills are carried out for testing the same. The State PCBs, concerned District Magistrates, CIFs of the Industries Departments may ensure the same and the nodal agency for the purpose will be the State PCBs, which may be monitored by the CPCB in an appropriate manner.”
The order was passed on a complaint filed by a Surat based NGO called Aryavrat Foundation which sought urgent hearing on June 5. In the complaint it was stated that the company had failed to follow requisite precautions and safety protocols.The matter has been transferred to the Principal bench of NGT, with the next date of hearing on November 3, 2020.
Background
The detailed Order of the NGT narrates the facts: “ On account of a fire in the storage tank of the factory, manufacturing several chemicals including Methanol and Xylene which find mention
in the Schedule to the Manufacture, Storage and Import of Hazardous Chemical Rules, 1989 (The 1989 Rules). On account of the saidincident, eight (08) workers were killed and atleast 50 injured. Bodies of some of the workers inside the factory were charred beyond recognition. We have seen some of the telling photographs during the hearing. About 4800 inhabitants of the nearby villages had to be moved to safer place1 on account of the incident. The company has revenue in the range of Rs. 100 crores for the year ending March 31, 2018. According to Mr. Panjwani, learned Senior Counsel appearing the applicant, the Company is owned by the Patel Group having large financial resources.”
The application before the NGT that was heard through Video Conferencing was filed by a NGO located at Surat mentioning the above facts based on newspaper reports (Indian Express, June 4). The applicant has also referred to another recent shocking incident of May 7, 2020 in the factory of L.G. Polymers India at Vishakhapatnam where 12 persons died and several others were injured.
The NGT Order relies upon the fact that, on May 8, 2020, the Central Pollution Control Board (CPCB)issued a circular requiring all the State PCBs to undertake safety audit of industries before they reopened after the COVID-19 situation. The industries dealing with hazardous chemicals were required to ensure that all safety protocols are followed and requisite equipment is operationalised and manpower is duly trained for handling such chemicals. On May 11, 2020, Maharashtra State PCB issued an identical circular specifically requiring the hazardous and chemical handling units to provide information with regard to onsite and offs it emergency plans, safety audit reports and action taken in pursuance of such report. It is stated that the company failed to follow requisite precautions and safety protocols. “The company is thus strictly and absolutely liable for the damage caused to the human lives, human health, property and the environment in violation of environmental norms, particularly the mandate of the1989 Rules, the Chemical Accidents (Emergency, Planning, Preparedness and Response) Rules, 1996(the 1996 Rules) and the circular issued by the CPCB,” held the NGT.
The NGT Order further held that it is undisputed during the hearing that the company is engaged in the manufacture of hazardous chemicals and is covered by the 1989Rules and the 1996 Rules. It has to prepare and follow onsite and off site emergency plan which is required to be duly audited and overseen by the statutory authorities including the Chief Inspector of Factories(CIFs), Department of Industries, the District Magistrate, the State PCB and the Petroleum and Explosives Safety Organization (PESO). The overall regulatory framework is under the Ministry of Environment,
Forest and Climate Change (MoEF&CC). Liability of the Company is strict and absolute for the loss caused by its activities. “Dependents/heirs of the deceased as well as the injured persons, the persons displaced on account of the incident have to be duly compensated. The company has also to bear the cost of restoration of the environment.”
Failure of Statutory Authorities
A significant aspect of the NGT Order is that it also looks at the failure of the concerned statutory authorities in taking necessary preventive and safety measures in general.
Specifically in the case of the Yashashvi Rasayan Private Ltd (YRPL) chemical factory at Dahej in Bharuch, Gujarat, the NGT has issued the following directions:
a) The Company may deposit an amount of Rs. 25 crores,minus the statutory compensation/ex gratia payments already made to the victims, if any, with the District Magistrate, Bharuch within 10 days from today.The amount may be disbursed by the District Magistrate by making disbursement plan in the manner already indicated above (Para 6). Disbursement plan may consider safeguards to ensure that amount reaches the beneficiaries and is not misappropriated by any intermediary.
b) The NGT constituted a 6-member Committee comprising:
(i) Justice B.C. Patel, former Chief Justice, Delhi High Court and former Judge of the Gujarat High Court presently stationed at Ahmedabad – Chairman
(ii) Representative of MoEF&CC – Member
(iii) Representative of CPCB – Member
(iv) Head of the Chemical Engineering Department of the IIT
Gandhinagar – Member
(v) Representative of NEERI – Member
(vi) Representative of National Institute of Disaster
Management, IIPA Campus, New Delhi – Member
The District Magistrate, Bharuch and GPCB will provide logistic support to the Committee to enable their fact-finding and reporting. The Committee will be at liberty to take assistance of such experts, individuals and institutions as may be considered necessary
c) The Committee may visit and inspect the site within 7 days and give its report within one month thereafter via emailjudicial-ngt@gov.in, (preferably in the form of searchable/OCR PDF and not image PDF).
The Committee may specifically report:
i. The sequence of events;
ii. Causes of failure and persons and authorities responsible therefor;
iii. Extent of damage to life, human and non-human; public health; and environment – including, water, soil, air;
iv. Steps to be taken for compensation of victims and restitution of the damaged property and environment, and the cost involved;
v. Remedial measures to prevent recurrence;
vi. Any other incidental or allied issues found relevant.
CPCB will be the nodal agency for coordination.
If any member is unable to visit physically, he may be associated online with the permission of the Chairman. The Committee may provide opportunity of being heard to the Company as well as any other member of the public.
A copy of the report may be uploaded on the website of the CPCB and also provided to the Company for its response.
d) It will be open to the concerned authorities to act on there commendations of the Committee to the extent the authorities find viable in exercise of their statutory powers pending further orders of this Tribunal.
e) The Committee may as far as possible make final quantification of compensation and also prepare a restoration plan in association with the District Magistrate, Bharuch. For the restoration plan, the nodal agency will be the representative of MoEF & CC.
f) The Chief Secretary, Gujarat may identify and take appropriate action against persons responsible for failure of law in permitting the Company to operate without statutory clearances within two months and give a report to this Tribunal.
g) In view of the stand of the State PCB that the order of closure has been passed, before re-commencing any operations, the Company may bring it to the notice of this Tribunal, so that it can be ensured that there is no violation of statutory provisions and safety measures.
The order is without prejudice to any criminal or other statutor proceedings in accordance with law.
Finally, the NGT has also held substantively that, since this tragedy follows so close on the heels of a similar one (in Vizag), “it may be necessary to ensure that risk studies are duly undertaken by all industries in the country dealing with the hazardous chemicals and their on-site and off-site plans are operational and mock drills are carried out for testing the same. The State PCBs, concerned District Magistrates, CIFs of the Industries Departments may ensure the same and the nodal agency for the purpose will be the State PCBs, which may be monitored by the CPC Bin an appropriate manner.
A direction (by the NGT in the same Order) “has already been issued to the MoEF &CC to constitute an Expert Committee on the subject of revamping the monitoring mechanism to check and prevent violation of environmental norms and occurrence of such incidents in future particularly in establishments dealing with hazardous chemicals anda special drive may be initiated, no separate direction is necessary but this incident may also be kept in mind by the Expert Committee constituted in pursuance of order dated June 1, 2020.
A copy of this order was ordered to be sent to Justice B.C. Patel, former Chief Justice, Delhi High Court and former Judge of the Gujarat High Court, MoEF&CC, CPCB, Head of the Chemical Engineering Department of the IIT Gandhinagar, NEERI, National Institute of Disaster Management, IIPA Campus, New Delhi, GPCB and District Magistrate, Bharuch by e-mail.
The NGT, in a suo moto case,has also recently held, in a similar incident of gas leak in Vishakhapatnam, that LG Polymers has absolute liability and had ordered interim penalty of Rs. 50 crore.
Meanwhile, a similar incident has also taken place in Assam where Oil India Limited (OIL) reported a blowout during workover operations at the Baghjan oil well leading to an uncontrolled release of natural gas which had not been controlled. The gas is leaking since May 27 and on June 9 it eventually led to an explosion engulfing nearby areas, burning houses and trees. OIL has said that it could be at least four more weeks till the fire and the blowout were brought under control. The NGT has not taken cognizance of this incident yet.
The complete order can be read here.
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