Case BriefsHigh Courts

Andhra Pradesh High Court: A Division Bench of Sri Jitendra Maheshwari, CJ and Lalitha Kanneganti, J., permitted the employees of the parent company of LG Chem Limited who belonged to South Korea to return back to their country as they were not binded by the restraining order of the Court wherein, the directors and employees of the LG Chem Ltd. company are not allowed to leave the country till the investigation is going on.

Who has filed the present petition?

Employees of LG Chem Limited have filed the present petition who are South Korean Nationals and are questioning the letter dated 28th May, 2020 addressed by the Assistant Commissioner of Police, seeking.

Petitioners have sought the following directions:

  • Issuance of an appropriate writ, order or direction to set aside the letter dated 28th May, 2020 issued by respondent 2
  • pleaded that presence of the petitioners in their country is very much essential as they have their own personal obligations to be performed.

Senior Counsel, Mukul Rohatgi on behalf of the petitioners submitted that the petitioners have nothing to do with the affairs of LGPI, Visakhapatnam and they are South Korea nationals and employees of LGC, South Korea as such they cannot be restrained from leaving to their country.They are not the employees or directors of LGPI.

Further, he  submitted that the petitioners will cooperate with the process of enquiry/investigation undertaken by any agency and it is neither feasible nor warranted for them to come to India and participate in the proceedings wherever the respondents require their presence. Petitioners are ready to cooperate from South Korea.

Petitioners visited the LGPI plant at Visakhapatnam as a part of a delegation from LGC (South Korea Team) with a view to supplement and assist the efforts being undertaken by LGPI in assessing the situation and extending care for those affected by the incident of styrene gas leakage.

Petitioners requested the respondent police to record their statements, yet there was unreasonable delay and further they restrained the petitioners from travelling to their own country under the garb of pending investigation.

Advocate General submits that the petitioners can be permitted to leave India provided they give an undertaking stating that they would appear before the Court or investigating agency whenever required, which has been opposed by the Senior Counsel as the same would not be feasible for them.

Decision of the Court

Bench states that petitioners are members of the expert committee of the parent company of LG Chem Ltd. In case their statements are required to the Court, as their statements under Section 161 CrPC were recorded by the police, as stated by the Advocate General, then their presence, if required in the opinion of the Court, may be availed.

Primarily petitioners may not have any liability of the incident, more so, when they are not the employees of the LGPI and are the employees of the parent company– LGC and came to India from South Korea to assist and find out the cause for the incident.

Thus, in view of the above, Court allows petitioners to travel from India to South Korea subject to following directions:

  • Shall filed individual affidavits
  • To be specified in the affidavit that as and when any response is sought for during investigation by the authorities, the same will be furnished.
  • Also to be specified in the affidavits that if their presence is required by the Court, they shall remain present as and when directed.

Petition was disposed of. [Jong Un Lee v. State of A.P., 2020 SCC OnLine AP 163 , decided on 24-06-2020]


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NGT
Case BriefsTribunals/Commissions/Regulatory Bodies

National Green Tribunal: A 3-Member Bench of A.K. Goel, Chairperson, and Sheo Kumar Singh, Judicial Member, and Dr Nagin Nanda, Executive Member, held that it was well within NGT’s jurisdiction to pass the earlier order dated 8th May 2020 wherein it had directed LG Polymers (India) (P) Ltd. to forthwith deposit an initial amount of Rs 50 crores with the District Magistrate, Vishakhapatnam. The NGT had taken suo motu cognizance of the deadly gas leak in a factory owned by LG Polymers at Vishakhapatnam.

By the instant order, the NGT gave further directions which are summarised herein:

Directions

(i) The amount of Rs. 50 crores deposited by LG Polymers with the DM, Vishakhapatnam, will stand appropriated towards part liability and interim compensation to be spent for restoration of the environment and compensation for victims in accordance with the restoration plan to be prepared.

(ii) Restoration plan may be prepared by a Committee comprising 2 representatives each of Ministry of Environment, Forest and Climate Change (“MoEF”) and Central Pollution Control Board (“CPCB”) and 3 representatives of the State Government to be named by the Chief Secretary, including the DM, Vishakhapatnam, within 2 months.

(iii) Final quantification of compensation may be assessed by a Committee comprising representatives of MoEF, CPCB and NEERI (National Environmental Engineering Research Institute). The said Committee will be at liberty to associate/co-opt any other expert institution or individual. The Secretary, MoEF may ensure constitution of such Committee within 2 weeks. The Committee may give its report within 2 months thereafter.

(iv) The Chief Secretary, Andhra Pradesh, may identify and take appropriate action against persons responsible for failure of law in permitting the Company to operate without statutory clearances within 2 months and give a report to the NGT.

(v) In view of the stand of the State Pollution Control Board and LG Polymers that it will not recommence its operation without requisite statutory clearances, NGT directed that if any such statutory clearances are granted and LG Polymers proposes to recommence, this aspect must be brought to the notice of the NGT so that compliance of law is ensured.

(vi) The MoEF may also constitute an Expert Committee to suggest ways and means to revamp monitoring mechanism to check and prevent violation of environmental norms and preventing any such recurrence in future in any of the establishments dealing with hazardous chemicals. A special drive may be initiated in this regard. An action taken report may be furnished within 3 months.

(vii) This order will not prejudice any criminal or other statutory proceedings in accordance with law.     

Timeline

The incident around which this whole issue revolves occurred in the wee hours of 7th May 2020 when reports started coming in that Styrene – a hazardous gas – has leaked from a chemical factory in R.R. Venkatpuram Village, Pendurthy Mandal, Vishakhapatnam. This resulted in the death of 11 persons (now 12) and hospitalisation of more than 100 people. More than 1000 people were reported sick. There was also damage to environment and habitat. The factory from which the gas leaked belonged to LG Polymers.

On 8th May 2020, the very next day, the National Green Tribunal initiated suo motu proceedings in the matter, and having regard to the prima facie material as to the loss of lives, public health and environment and liability of the Company engaged in inherently hazardous activity, directed the Company to forthwith deposit an initial amount of Rs 50 crores with the District Magistrate, Vishakhapatnam. BY this order, the NGT also constituted a 6-member Committee to visit the site of the incident and submit its report. 

Notably, as soon as the incident occurred, the Andhra Pradesh High Court too took suo motu cognizance of the matter and directed the State Government to constitute of committee of appropriate officers not below the rank of Principal Secretaries.

On 14th May 2020, LG Polymers approached the Supreme Court against the above order passed by the NGT. Senior Advocate Mukul Rohatgi, who appeared for LG Polymers before the Supreme Court, challenged the constitution of the 6-member Committee by NGT. According to him, there was no occasion for NGT to appoint this further Committee when the High Court has already directed appointing of the Committee while taking suo motu cognizance. He also referred to some orders passed by the Supreme Court where the question whether the NGT could take suo motu cognizance of any matter was squarely in issue. While posting the matter for 8th June 2020, the Supreme Court gave liberty to LG Polymers to raise their contentions before the NGT.

Discussion

A. Suo motu jurisdiction

Rejecting the objection raised by LG Polymers to the taking of suo motu cognizance, the NGT noted that it has the purpose and power to provide relief and compensation to victims of environment damage, restitution of property, and restoration of environment. To effectuate this purpose, NGT has wide powers to devise its own procedure. In appropriate circumstances, this power includes the power to institute suo motu proceedings and not keep its hands tied in the face of drastic environmental damage and serious violation of right to life, public health and damage to property. This is especially so when the victims are marginalised and/or by reason of poverty or disability or socially or economically disadvantaged position cannot approach the NGT. The power is coupled with duty to exercise such powers for achieving the enumerated objects. Failure to exercise suo motu jurisdiction in such circumstances would render these victims without remedy, causing irretrievable injustice and breakdown of Rule of Law.

It was stated:

If NGT were powerless to institute suo motu proceedings where so warranted, as in the present case, it would be robbed of all its efficacy, because then the situation would be that if environmental damage causes loss of life, public health and property, the court can grant relief only if the victims found the means to approach it first. Such limitation, to a large extent, would emasculate NGT’s raison d’etre, and render it nugatory and futile.

Referring to various provisions of the National Green Tribunal Act, 2010 and several decision of the Supreme Court including State of Meghalaya v. All Dimasa Students Union, (2019) 8 SCC 177; Bhopal Gas Peedith Mahila Udyog v. Union of India, (2012) 8 SCC 326 and M.C. Mehta v. Union of India, (1987) 1 SCC 395, the NGT observed:

If this Tribunal is prevented from instituting suo-motu proceedings, these issues and violations [serious issues of environment, including air, water, soil, and other life-threatening pollution] would remain unaddressed, citizens’ inalienable right to life and other rights will stand jeopardized, and the serious and irreversible environment damage would continue unchecked.

B. Pendency of proceedings before the High Court

As regards pendency of proceedings in the High Court and other fora, and the Committees appointed by the various fora, the NGT noted that there is no conflict on the core issue being considered by it, a specialised Tribunal, as per mandate of law in judgements of the Supreme Court. The NGT stated:

The fact remains that the specialised statutory jurisdiction to award compensation is conferred on this Tribunal, which also has all and wide powers, procedure and mechanisms to resolve and award appropriate relief and remedies. Our attention has not been drawn to any other committee or court going in to the issue of compensation and restitution to the victims to the environment. Only this Tribunal has required deposit of an amount to be used for compensation, to be disbursed under orders of this Tribunal. Even the Company has deposited the amount and cannot object to abide by further orders in this regard. Thus, without prejudice to any other proceedings, the Tribunal can perform and exercise its statutory jurisdiction.

C. Strict and absolute liability of LG Polymers

Considering all the material, the NGT found that LG Polymers has strict and absolute liability for the environmental damage and consequential loss including to life and public health in this case. The stand of MoEF and the State PCB is unequivocal that LG Polymers did not have the requisite Environment Clearance (“EC”). There is also clear violation of the Manufacture, Storage and Import of Hazardous Chemical Rules, 1989. Liability of LG Polymers is strict and absolute in the circumstances. The report of the Joint Committee constituted by the NGT filed on 28th May 2020 found LG Polymers liable. It opined that LG Polymers did not take proper care of the storage tank resulting in auto polymerization of styrene releasing excess heat which escaped from the goose-neck and dip hatch in the form of vapour. It is also mentioned that the unit was operating without the requisite EC. The State PCB had no clarity in the matter while granting the statutory consents without EC. This report is supported by clinching material consistent with the stand of the MoEF and State PCB.

D. Failure of Authorities and need for remedial measures

The NGT was of the view that further remedial action needs to be taken in the matter of bringing to justice erring officers of authorities in the State of Andhra and liability of the State or officers being further gone into. There is also need for rehabilitation plan utilising the interim and further compensation. Lastly, regulatory framework needs to be reviewed and strengthened, apart from identifying steps to ensure compliance of laid down safety norms and laying down further norms and procedure to avoid recurrence of such failures in future. The NGT said:

Safety of citizens and environment are of prime concern. Any economic or industrial activity, however necessary, has to be consistent with the safety of human beings and the environment. The damage to human life, human health and environment has to be restored by applying the ‘Sustainable Development’ principle, of which ‘Precautionary’ and ‘Polluter Pays’ principles are part. In this regard, significant role has to be played by the statutory authorities constituted under the Water (Prevention and Control of Pollution) Act, 1974, Air (Prevention and Control of Pollution) Act, 1981 and the Environment (Protection) Act, 1986.

In view of such discussion and findings, the NGT issued the further directions as mentioned hereinabove. The matter is directed to be listed for further consideration on 3rd November 2020. [Gas Leak at LG Polymers Chemical Plant in Vishakhapatnam, In re, 2020 SCC OnLine NGT 129 , decided on 1-6-2020]

Case BriefsSupreme Court

Supreme Court: In the plea challenging the Andhra Pradesh High Court order dated 22.05.2020 which directed the complete seizure of the  LG Polymers Plant in Vishakhapatnam in the case relating to the hazardous gas leak which claimed 12 lives and affected hundreds of others on May 7, 2020, the 3-judge bench of UU Lalit, MM Shantanagoudar and Vineet Saran, JJ allowed 30 LG Polymers personnel to access to the plant round the clock to maintain adequate safety measures as an interim measure till the matter is considered by the High Court.

“we permit the petitioner to give a list of 30 personnel as discussed hereinabove. Upon such names being given to the District Collector, those persons shall be afforded access to the plant round the clock to maintain adequate safety measures.”

The said direction of the Court came after Senior Advocate Mukul Rihatgi submitted that a complete seizure or sealing of plant/ premises will have tremendous adverse consequences and impact.

“the temperature of the plant cannot be allowed to go beyond 25° C; and if by any chance because of lack of adequate attention or safety measures, if the temperature goes beyond 25° C situation can have some ill effects.”

Here’s what LG Polymers submitted before the Supreme Court:

  • atleast 28 technical personnel and two administrative officials/incharge must be given emergency access to the plant/premises at any given point of time so that adequate safety measures are undertaken round the clock.
  • at the intermediate stages of manufacture, the Polymers that the petitioner manufactures can have toxic effects and therefore adequate safety measures have to be undertaken every time.
  • the premises in question also house the administrative and Law Offices of the Company and in case the entirety of the premises are seized/sealed, the operation of the company will stand seriously prejudiced.
  • the products lying for clearance be allowed to be cleared so that there are no adverse financial effects on the Company.
  • the inspections to be carried pursuant to the directions issued by the High Court must be in the presence of officials of the Company so that adequate assistance as well as complete knowledge about the processes undertaken by the petitioner could also be highlighted sufficiently.

Finding force in the abovementioned submissions and considering the fact that the compliance report was directed to be filed by 26.5.2020 and the matters may be taken up on 27.5.2020 & 28.5.2020, the Court gave liberty to the petitioner to place all these issues and aspects for consideration by the High Court.

Passing interim order in the matter, the Court clarified,

“This ad interim direction will continue till the High Court considers the matter.”

[LG Polymers India Pvt. Ltd. v. State of Andhra Pradesh, SPECIAL LEAVE PETITION (CIVIL) Diary No(s). 11636/2020, order dated 26.05.2020]

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Vizag Gas Leak Incident| A.P. HC | LG Polymers to be seized and passports of directors shall not be released without leave of Court

COVID 19Hot Off The PressNews

UN independent expert while monitoring the Vizag Gas Leak stated,

“deadly toxic gas leak at a Korean-owned polymer plant in south-eastern India, is a grim wake up call for the chemical industry to acknowledge and fulfil its responsibility to respect human rights.”

Twelve people reportedly died and more than 1,000 fell sick after styrene leaked from the LG Chem plant near Visakhapatnam, in Andhra Pradesh state, on 7 May.

Styrene is used to make plastics, but it can also cause cancer and neurological damage. It can also harm reproduction and its impacts may go unnoticed for years after exposure.

 Baskut Tuncak, Special Rapporteur on hazardous substances and wastes said that,

“The latest disaster has rightly drawn parallels to the toxic gas leak that killed thousands in Bhopal, India, in 1984.”

Further he added,

“I urge Indian and South Korean authorities, and the businesses implicated, to avoid the same mistakes and abuse of judicial procedures that have denied justice to the victims of the Bhopal disaster, who are still suffering to this day.”


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Who are UN Special Rapporteurs?

UN Special Rapporteurs are part of what is known as the Special Procedures of the Human Rights Council. Special Procedures, the largest body of independent experts in the UN Human Rights system. The experts work on a voluntary basis; they are not UN staff and nor do they receive a salary for their work.


Source: UN News