The Supreme Court on Monday has asked the High Court of Andhra Pradesh to expeditiously decide the pleas of LG Polymers pending before it seeking access to the plant and challenging its sealing, while also restraining the disbursal of the deposit amount of 50 crores by LG Polymers for 10 days.
A three-judge bench of Justice UU Lalit, Justice Mohan M Shantanagoudar and Justice Vineet Saran heard the plea taking on record a statement by LG Polymers that they intend to challenge the NGT order of June 1, 2020, and issued the following directions:
- Requested the High Court to decide by the end of next week three applications by the LG Polymers regarding access to the plant, and for the company to respond to various committees that have been set up by different authorities in the wake of May 7, 2020, gas leak.
- Puts on hold for 10 days the June 1, 2020 order of NGT directing the appropriation of Rs. 50 crores so that it could be put to some use.
- LG Polymers will move the Andhra Pradesh High Court for the release of the passports of their Directors currently deposited with authorities.
During the hearing today, Senior Adv Mukul Rohatgi appearing on behalf of the Petitioner informed the Court that there are two pleas, one challenging the NGT Order and the other challenging the Andhra Pradesh HC order.
While taking the bench through orders passed by the HC order which had sealed the plant at Vizag, he stated that directors of the Company were told to deposit their passports and the High Court has no jurisdiction to pass such order. Further, As directed by the SC, 30 personnel had tried to enter the plant, 2 of whom were lawyers. The DM effectuating this, said that professionals cannot enter.
Justice Lalit questioned Rohatgi if at any point they had asked for permission from authorities to take out the dangerous gas. Rohatgi responded by that stating that it has been sealed and its a highly specialised plant. The condition of sealing the plant, without expert opinion by the High Court is misplaced.
Regarding the NGT order, Rohatgi stated that numerous committees have been appointed to monitor the issue. The Collector had no reason to disallow entry of two personnel just because they were lawyers, specially after the Apex Court had directed the entry of 30 personnel into the plant.
In response to Justice Lalit’s statement that the NGT order hasn’t be challenged before the Supreme Court, Rohatgi informed that they are challenging the order of sealing the Plant at Vizag and deposition of passports by Directors.
We are not criminals that we’ll run away!, Rohatgi said.
In response to Rohatgi’s contention that the order of sealing of the plant was unconstitutional, the Bench stated that the order wasn’t unconstitutional, and refused to get into the issue at the present juncture.
‘If anything it was the fault of the manufacturers that led to the gas leak’, the Bench said.
The SC on the previous hearing had refused to immediately interfere with NGT order which had constituted a five-member fact-finding committee and had also directed ‘LG Polymers’ to deposit Rs 50 crores for damage caused by a gas leak in Visakhapatnam, in which at least 12 people were killed. The Court, while sending the case to the High Court for further consideration, had directed the Vizag based LG Polymers to submit a list of 30 personnel to the District Collector who would be allowed access to the Plant Premises, on request by Senior Advocate Mukul Rohatgi
The National Green Tribunal in its order in first week of June, had held that the LG Polymers India Pvt. Limited has strict and absolute liability for the environmental damage and consequential loss including to life and public health.
The NGT had suomoto initiated the proceedings on the basis of media reports to the effect that leakage of hazardous gas Styrene took place at 03:45 AM on 07.05.2020, from a chemical factory owned by the South Korean company LG Polymers India Pvt. Limited resulting in death of 11 persons (now 12) and hospitalization of more than 100 people, of whom at least 25 were then reported to be serious. These fatalities and injuries were reportedly likely to increase. More than 1000 persons were reported sick. There was also damage to environment and habitat.
The Central Government and the State PCB had unequivocally said that the company did not have the requisite Environmental Clearance. There is also clear violation of the 1989 Rules. Liability of the company is strict and absolute in the circumstances. The report of the Joint Committee constituted by the Tribunal filed on 28.05.2020 is supported by clinching material consistent with the stand of the MOEFF&CC and state PCB.
Acting upon the plea, the bench comprising of Justice Adarsh Kumar Goel, Justice Sheo Kumar Singh & Dr. Nagin Nanda, had observed that the company has operated without EC and the State PCB on account of its ignorance of law or otherwise gave ‘Consent to Establish’ and ‘Consent to Operate’ in violation of law. There is violation of 1989 Rules. Liability of the Company is strict and absolute under the law. Burden of proof to show that it has no liability is on the company. Overwhelming material establish the liability of the company. The amount deposited has thus to be appropriated towards part liability and interim compensation subject to further orders after giving further opportunity to the company.
The NGT had further held that 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.
The NGT bench had laid down further directions which were as follows:-
- The amount of Rs. 50 crores deposited by the Company with the District Magistrate, 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.
- Final quantification of compensation may be assessed by a Committee comprising representatives of MoEF&CC, CPCB and NEERI. The said Committee will be at liberty to associate/co-opt any other expert institution or individual.
- 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 two months and give a report to this Tribunal.
- In view of the stand of the State PCB and the Company that it will not recommence its operation without requisite statutory clearances, we direct that if any such statutory clearances are granted and the Company proposes to recommence, this aspect must be brought to the notice of this Tribunal so that compliance of law is ensured.
- The MoEF&CC 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.
The NGT had listed the case for further hearing on 3rd November, 2020.
-India Legal Bureau