“National Policy on hazardous industry and the Law.” – By Dr. Md. Faiyaz Khan

    By Dr. Md. Faiyaz Khan,

    More than seven million chemicals are now known to man, and several thousand new ones are discovered every year. Most of them have only ever been mentioned once in the chemical literature. Even so, about 80,000 chemicals are now in common use, and every one is a potential hazard if wrongly used or if released in large quantities by accident.


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    Hazardous industry can be defined as an enterprises engaged in hazardous process which may cause adverse effects on the health of the people and the environment unless special care is taken in relation to its raw material, by products, waste materials and the effluent thereof thus industries relating to the products of chemicals petroleum fertilizer, leather highly inflammable liquid gases etc. can be classified as hazardous industries1. According to the Environment (Protection) Act, 1986 any industry handling2 or dealing with hazardous substance4 may be put under the category of hazardous industries.

    In present time; open global market economy, hazardous industries are playing their decisive role in Economic development and the advancement of the well being of the people in any country but simultaneously they are causing the problem of risk to human life and the environment. In this way, it has become a matter of grave concern all over the world and specially in developing countries like ours which not only is facing the acute problem of environment pollution but also the pressure of population growth which in turn is supposed to be one of the main reasons responsible for causing the problem of environmental pollution.

    The origin of national policy on chemical and hazardous industries relates to two major incidents of gas leakage, the Bhopal tragedy in 19845 and oleum gas leakage case in 1985 at Delhi6: in these cases, the supreme court found English rule of strict liability unsuited7 to meet the disastrous situation caused by hazardous industries because the rule is subject to certain exceptions. Consequently, the court stressed on the need of having some specific policy on chemical and hazardous industries in the country.

    The judgment given in the case of M.C. Mehta V. Union of India AIR 1987 Sc 965, can be said to be of historical value as it not only decided several controversial issues relating to chemical and hazardous industry but also included several suggestions made there in by the supreme court as enable the central government to frame a national policy regarding such industries. In this the controversial issue before the supreme court was who there such large enterprise should be allowed to continue functioning in thickly populated areas? If so what measures must be taken hazard for the purpose of reducing to a minimum the hazard to the workmen and the community living around? In this context the court made it clear that when science and technology are increasingly employed in producing goods and services calculated to improve the quality of life, there is certain

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    * Lecturer P.G. Deptt. of Law (P.U.) Patna

    1. Section 2 (cb) of factories Act. 1948

    2. Section 2 (d) of Environment Protection Act 1986

    3. Section 2 (e) of Environment Protection Act 1986

    4. India Bar Review Vo1 XXIII (1) 1995 at I

    5. Union Carbide corporation V. Union of India AIR 1990 SC 273

    6. M.C. Mehta V. Union of India AIR 1987 SC 965

    7. Ryland V. Fletcher (1968) LR 3 HD 330

    element of hazard or risk inherent in the very use of science and technology and it is not possible to totally eliminate such hazard or risk altogether. Thus it is not possible to adopt a policy of not having any chemical or others hazardous industries merely because they pose hazards or risk to the community, if such a policy were adopted, it would mean the end of all progress and development and the advancement of well being of the people.

    Keeping in view the aforesaid circumstances the Supreme Court allowed Sri Ram Food and Fertilizer industries to reopen with certain stringent conditions and directions. Some of them were as under:-

    1. That chief inspect of factories would inspect caustic chlorine plant weekly.

    2. The central inspector control board would depute an inspector to ensure compliance of emission standards.

    3. The management of Sri Ram Food and Fertilizer industries were required –

    (a) To appoint one operator liable for the safety devices in caustic plant.

    (b) To provide training to the workers about the safety measures through audio visual programs.

    (c) To provide safety device like helmets, gas masks, safety belts and to ensure regular medical checkup of the workers.

    (d) To deposit a sum of Rs.- 20 Lacks as security for payment of compensation to the victims of gas and a bank guarantee of Rs.-15 Lacks to meet future compensation in case of accident due to escape of chlorine gas within period of 3 Years.

    It all indicates that Supreme Court was clearly in favor of retaining hazardous industries but simultaneously it was concerned about their liabilities also. In this context, the court was fully convinced that an enterprises engaged in hazardous or inherently dangerous activities (which pose a potential threat to the health and safety of person working in the factory and those residing in surrounding areas) owns an absolute and non-delegable duty to the community to ensure that no harms result to any one account of hazardous or inherently dangerous nature of the activity which it has undertaking. In this context, court found English law of strict-liability inapplicable as carries certain exception decided in Ryland v. Fletcher. The court was of the view that the enterprises undertaking hazardous or inherently dangerous activity is under an obligation to conduct such activity with the highest standards of safety and he held liable absolutely to compensate for the harm which results on account of such activities. In such circumstance, enterprises would not be allowed to say that it had taken all reasonable care and the harm occurred without any negligence on its part. The court, while stressing on the liability of such enterprises regarding the compensation, made it clear that enterprises permitted to carry on hazardous or inherently hazardous activity for its profit, the law must presume that such permission is conditioned on the enterprises absorbing the cost of accident arising on account of such hazardous or inherently dangerous activity as an appropriate items of its overheads. The enterprises engaged in such hazardous or inherently hazardous activity has indemnity all those who suffer on account of the carrying on such hazardous or inherently dangerous activity regardless of whether it is carried on carefully or not. Further, regarding the liability of the compensation, the court said that measure of compensation must correlate to the magnitude and capacity of the enterprises as to have deterrent effect.

    It is quit important to mention that Supreme Court stressed upon the government to evolve a national policy for the location of chemical and other hazardous industries in areas where population is scarce8. the court made it clear that we cannot allow our judicial thinking to be construct by reference to law as it prevails in England. We have to build up our own jurisprudence if law dose not recognize the rule of strict liability in case of hazardous or dangerous liability. the court Expressed its concern that it is difficult to find independent experts to advise in the case involving the issues of environmental pollution, hence the court advised the Government of India to set up ecological science research group consisting of independent professionally competent experts in different branches of science and technology to act as information bank and also to set up environment courts9 as well.

    The question relating to the liability of hazardous industries came for discussion before the Supreme Court in Vellore Citizen Welfare Forum v. Union of India10. In this case a citizen group from Vellore district (Tamil Nadu) known as Citizen welfare Forum moved a writ petition (PIL) under article 32 against several industries and tanneries for leaving their untreated toxic effluent in open area. Which ultimately polluted Polar River, the only source of potable water in the area. The court, while upholding rule or ‘polluter pays principle’ and that of ‘precautionary principle as the part of land, asked the central government to appoint an authority to assess the loss caused to the environment/ecology and the compensation for effected families and also to determine compensation to be recovered from the polluter as the cost of reserving the damaged environment from the polluters.

    Further, the issue relating to liability of hazardous industries came for discussions in Indian Council for Enviro-legal Action v. Union of India.11 In this case the court while upholding the validity of the rule of absolute liability as laid down in oleum gas leakage case said that it is the most appropriate and binding principle in case of hazardous industries regardless of whether activities of such industries were being carried on carefully or not. The court, while applying ‘polluter pays principle in the circumstances of the case, clearly said that the rule demands that the financial cost of prevention or remedying damage caused by pollution should lie with the undertaking that causes Pollution. In this case, one Hindustan Agro Chemical Limited (operating in Bichhri, a small village of Udaipur district, Rajasthan) allowed its untreated toxic effluent in open areas. Consequently, water in river and wells in that area became dark and unfit for human consumption and for agriculture irrigation also. The soil lost its fertility and the people living around the establishment suffered from skin and others disease resulting in the death of several person. Keeping in view the disastrous situation caused due to the toxic effluent of chemical industries and the function and the liability of the central government as mentioned under section 3 and 5 of the Environment (Protection) Act 1986, the Supreme Court issued some specific direction to the government where in it was asked “to determine the amount for remedial measures” and to recover the same from the respondent (owner of the establishment) and to utilize such amount for remedial measures, i.e., to restore the soil. Water resources and the environment in general of the effected area to its former state.

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    8. M.C. Mehta V. Union of India, AIR 1996 SC 223

    9. See “Environ Mental Courts Likely in India soon “The Times of India 2 Jan 2003

    10. AIR 1986 SC 2715

    11. AIR 1996 SC 1446

    The concept of the ‘principle of precautions’ has been very well defined by the Supreme court in A.P. Pollution Control Board v. M.V. Nayudu12. The ‘principle of precaution’ involves the anticipation of environmental in harm and taking measures to avoid it or to choose the least environmental harmful activity. It is based on scientific uncertainty. Environment protection should not only aim at protecting health. Property and economic interest but also protect the environment for its own sake. The precautionary duties must not only be triggered by the suspicion of concrete danger but also by way of (justified) concern or risk potential. The principle suggested that where there is identifiable risk or serious irreversible harm, it may be appropriate to place the burden of proof on the person or entity proposing the activity that is potentially harmful to the environment.

    The rule of polluter pays principle’ has became the rule of the land and is applicable not only to hazardous industries but anyone who pollutes The environment comes with in its ambit. The rule has recently been applied by the Supreme Court in M.C. Mehta v. Kamal Nath and Others13. It was a dispute relating to a Span Motel Pvt. Ltd., Kullu Manali Himachal Pradesh owned by former minister of environment and forest . The apex court found the motel responsible for causing disturbance in natural flow of Beas river and ordered to pay Rs.10 lakhs as the cost for ecological restoration. Similarly, in a very recent case T.N. Godavarman Thirumalpad v Union of India14, the Supreme Court imposed a fine of Rs.1 crore on the Government of Himachal Prades for neglecting the ecology by allowing the companies to paint advertisements on eco-fragile rock faces on both sides of Rohtang-Manali road The court directed to use the money for restoring the ecology disturbed by the painting of advertisements on the rock faces done by MBD Books Coca Cola Pepsi and Birla Whites.

    Conclusion

    The principle relating to national policy on hazardous industries and the enactments made in pursuance of the direction of the Supreme Court can be summarized as follows:

    Principle

    1. Principle of absolute liability – since the activities of hazardous industries are dangerous and pose potential threat to the health and safety of the persons working therein and person residing in its surrounding therefore such establishment owes absolute and non- delegable duty towards the community. Thus if any harm results on account of such activities the enterprise would absolutely be held responsible to compensate for such harm and in no way would it occurred without any negligence on its part.

    2. Principle of polluter pays – The rule goes beyond the liability of the compensation and requires the hazardous industries to pay the cost for remedial measures and restoration of natural environment. Now it became a universally accepted principle that financial coast of prevention and remedying damage caused by pollution should lie with the undertaking which causes the pollution. Such liability for remedial measure of the establishment legislation.

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    12. AIR 1999 SC 812

    13. AIR 2000 SC 1997

    14. 2003 (6) SCALE 354

    3. Principle of precautionary measures – The principle of precautionary measures involves the anticipation of environmental harm and taking measures to avoid it. In case of hazardous industries the Supreme Court has stressed on reducing the element of hazardous or risk to the community by taking all necessary steps while location such establishment.

    4. Principle of highest safety standards – The Supreme Court while delivering remarkable judgment in oleum gas leakage case was of the view that since the activities of hazardous industries are dangerous hence they must be conducted with highest standards of safety. It clearly indicates that the activities of hazardous industries should be carried on in accordance with emission standards laid down by the respective boards. Such liability has specially been made different provisions of environmental legislation.

    Enactments

    1. Hazardous waste (Management and Handling) Rules 1989- The central government in exercise of the power conferred on it by sections 6, 8 and 25 of the Environment (Protection) Act, 1986 enacted these rules. These rules list 18 item of hazardous wastes under the given schedule and prescribes their quickly beyond which an occupier generation hazardous wastes is not only liable to take all practical steps to ensure that such wastes are properly handled and diseased of without any adverse effect but also responsible for proper collection reception treatment storage and disposal of these wastes either himself or through the operator of facility. Further under rule 4 ever occupier generating hazardous wastes and having facility for collection, reception, treatment, transport, storage and disposal of such wastes shall make an application to state pollution control board for the grant of permission for aforesaid activities. Under rule 7, occupier is required that before the deliver of the hazardous waste , it should be packed in a manner suitable for storage and transport with the visibility of leveling and packing made in accordance with climatic condition . Finally rule 11 prohibits the import of hazardous wastes from any country to India for processing or reuse as raw material after examining it on merit by the state pollution control board.

    2. The Manufacturing, Storage and Import of Hazardous Waste Chemical Rules 1989 (as amended in 1994) – In exercise of power conferred under section 6 8 and 25 of the Environment (Protection ) Act , 1986 the central government enacted these rules The rules cover a long list of 434 hazardous toxic chemical in the second part of the schedule. Under rule 4 the occupier having control on handling hazardous activities, is required to provide evidence to show that he has:

    1. Identified the measures for avoiding accident , and

    2. Taken adequate steps to-

    1. Prevent such major accidents and to limit their consequence to person and the environment.

    2. Provide to the person working on the site with the information training and the equipment including antidotes necessary to ensure their safety.

    Further under rule 5 occupier is liable to inform the concerned authority, in case of any accidents within 48 hours about the pipeline or site accident and send requisite information to the Ministry of Environment and forest within a period of 90 days under rule 13 occupier is required to prepare and up to date on-site emergency plan how major accident would be dealt with on the site includ3e the names of the person responsible for safety of the site along with names of those who are authorized to make action in case of emergency.

    3. Public Liability Insurance Act, 1991 (PLIA)- The Act makes it mandatory for the owner of hazardous industries to take insurance policy in order to enable him to pay compensation in case of any mishap Section 3 of the Act creates liability of the owner based on the principle of no defaults to give relief in case of the death or injury to persons (other than workmen) or damage resulting from the accident. Section 4(2A) of the Act makes it mandatory for the owner immediately or before the commencement of the act to take insurance policies within a period of one year from the commencement of the act. The amount of insurance policies shall not be less than the amount of the paid up capital of the undertaking handing any hazardous substance owned or controlled by the owner and not exceeding the amount of Rs.50 cores Every owner shall together with the premium pay to the insurance for being credited to the Relief Fund Established under section 7(a) of the Act Further rule 6 of Public Liability Insurance Rules 1991 lays down that the money of the fund would be utilized for the accident which may have occurred in a hazardous industry .The fund shall be credited in the State Bank of India or any nationalized bank and would properly be operated by the administrator nominated by the owner.

    4. The National Environment Tribunal Act, 1995(NETA): The Act Provides the provision for the establishment of the national environment tribunal for effective and expeditious disposal of the case arising from any accident against the occupier while handing any hazardous substance .The act covers absolute liability of the occupier and provides relief and compensation for the damages to the person, property and the environment caused due to accident in the establishment. Section 3 of the act creates liability of the owner to pay compensation on the principle of no default in case of death, injury to any person (other than workmen) or damage to any property or environment resulting from an accident. The national environment tribunal under the Act has same jurisdiction, power and authority as the collector may exercise under public liability Insurance act, 1971. Any claimant making an application under public liability Insurance Act may also make an application before the tribunal but no application shall be made if the relief has been received by the claimant earlier or an application made by him to the collector is pending and has not been withdrawn. The limitation of time to make application for compensation has been fixed 5 years from the date of accident.

    5. National Environment Appellate Authority 1997: The object of the Act is to provide for the establishment of a national environmental appellate authority to hear appeal with respect to restriction of industries operations or processes or class of industries operation or process shall not be carried out or shall be carried out subject to certain safe guard under the environment (protection) Act 1986 for matters connected therewith or incidental thereto. Under section 11 of the Act the aggrieved person may go in appeal to authority in case of afore said matters within 30 days but the time may be extended up to 90 days if he satisfies the authority that he was prevented by some sufficient reason from filing an appeal. According to section 3 and 4 of the Act authority shall have a chairperson one vice-chairperson along with three members. For the post of chairperson one should be either a judge of Supreme Court or chief justice of high court. While for the post of vice chair person one should have been secretary to the government of India least for two years or any person of central or state government having pay scale equivalent to secretary of India and should have administrative, legal, managerial or technical aspects of the problems relating to environment. For the appointment of member one should have knowledge or practical experience in matters relating to environment, management, law or planning and development. The president shall appoint the chairperson and vice-chairperson.

    Suggestions

    No doubt, the aforesaid discussion cover major aspects of government policy and the law about the hazardous industries in the country but still there are various important measures that still need to be included therein. Such measures would not only be effective in controlling the activities of hazardous industries but also be helpful in reducing the chances of causing any damage to environment, property and the person. In this context, the following suggestions are made:

    1. Need to introduce some methodology to study environmental impact assessment (EIA) for the person seeking to locate the hazardous industry – no doubt, the central government has been empowered under part (VII) of rule 5 of the environment (protection) rules 1986 to take into consideration net adverse environmental impact likely to be caused by the operation of any industry while to prohibit and restrict the location of industry. But as per opinion of Supreme Court the burden of proof to identify risk of the harm to the environment also lies on the person or entity proposing the activity (i.e., the person seeking to establish or operate industry). But in the absence of any methodology or procedure suggested therein to carry out the study for EIA, its is very difficult to have any clear picture about the aftereffects of any hazardous industry proposed to be established. In this circumstance, it is essential that some methodology to conduct the study of EIA must be suggested and the inclusion of public opinion living around the industry proposed to be established should be made an integral part of such methodology. For this purpose environmental legislations should accordingly be amended.

    2. Need to change the cognizance power of the court under environmental legislations- The critical aspects of cognizance power of the court under different legislations is that it will not take cognizance on any private complaint unless a person duly serves a notice of 60 days to the board about his intention to file the suit. Thus, it precludes the effected persons from seeking remedy for a considerable time. Since the boards are already under mandatory duty to monitor the activities of the industries, hence there is no justification to restrain any effected person from seeking any remedy for such a long time. Thus, there is need to set aside such restriction of 60 days to enable the court to take quick action and provide immediate relief to the complainant. In this circumstance, appropriate amendments should, accordingly, be made under aforesaid provisions of environmental legislations.

    3. Need to create public awareness about legal producer- in facts; it is the awareness of people that plays a decisive role behind the success of any legislations or national policy. But generally people are not well acquainted with the legal producers as to enable them to seek relief under environmental legislations, hence there is need to educate people about such legal producers. This can easily be done by state pollution control boards in exercise of there functions respectively under section 17 of water (prevention and control of pollution) act (WPA) and section 17 of air (prevention and control of pollution) act (APA) by organizing legal camps, seminars or distributing leaflets among the people and specially in areas around the hazardous industries.

    4. Need to create some specific liability of states boards under environmental legislations- no doubt, it is due to the activities of the hazardous industries not being carried out in accordance with the provisions of the environmental legislations for a considerable period that ultimately cause disaster situation of natural environment (as happened in cases of vellore and bichheri). Such situations clearly relates to monitoring system, which needs to be carried out by the state boards in exercise of there functions as mentioned under environmental legislations. In this circumstance, the question arises, if somewhere any negligence lies on the part of the boards, why should they not be held responsible for their conduct along with the industries which are held mainly responsible for causing disastrous situation due to their irresponsible activities. In this circumstance, there is a need to create some specific liability of the state boards also to meet such situation. For this purpose, section 62 of WPA and section 47 of APA should accordingly be amended.

    The inclusion of aforesaid suggestions under different environmental legislations may be quite helpful in making policy on hazardous industries quite effective and useful. Moreover, it may provide better opportunity for the people to participate along with the boards in monitoring the activity hazardous industries. It would not only put a substantial pressure on hazardous industries to carry to carry on there activities in accordance with rules and the prescribed standards but also enable the people to protect there life, property and the environment more effectively in the present era of hazardous industries in the country.

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