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Judgment
Proceedings have been initiated suo-motu in view of captioned media report about gas leak at Visakhapatnam, Andhra Pradesh, affecting the health of 178 women workers.
In pursuance of advance notice dated 06.06.2022, issued by the Registry, response was filed by CPCB, State PCB and Porus Laboratories Private Limited. Submissions were also been filed by an NGO – “Scientists for People”.
The Tribunal considered the matter earlier on 03.08.2022. From the pleadings, cause of the incident not being clear, the Tribunal constituted a six member joint Committee headed by Chairman State PCB with Regional Director, CPCB, nominee of NDMA, Prof. P. Jagannadha Rao, Department of Chemical Engineering, Andhra University, Visakhapatnam, District Magistrate, Anakapalli, Director Industrial Safety, Andhra Pradesh and Indian Institute of Chemical Technology, Hyderabad as members, to undertake visit to the site, ascertain cause of the incident and suggest remedial measures. Operative part of the order is reproduced below:-
“3. The NGO has submitted that the gas released in the present case is from Seeds Intimate Apparel Factory and Porus Lab in APIIC SEZ, exposing 369 women workers to ammonia. There is also probability of incident on account of handling of viscose fabric for innerwear. NGO has accordingly, suggested a scientific study.
Stand of CPCB is that according to version of State PCB, gas leak is from M/s Brandix Apparel India Ltd. and not from Porus Lab Private Limited. CPCB has prepared Guidelines tilted “Integrated Guidance Framework for Chemicals Safety in Respect of the Isolated Storages and Industries Covered Under Manufacture, Storage and Import of Hazardous Chemicals Rules, 1989” in pursuance of orders of this Tribunal dated 11.06.2021 in O.A. No. 60/2021 which has been forwarded to all State PCBs/PCCs on 24.12.2021.
The State PCB has stated that the incident took place at M/s Seeds Intimate Apparel India Pvt. Ltd. in Special Economic Zone (SEZ) of M/s Brandix India Apparel City (Pvt.) Ltd., (BIAC) Pudimadaka Road, Atchuthapuram, Anakapalli District. The State PCB constituted a Committee to enquire into the incident which has given its report. The report has been examined by the State Government and the matter has been referred to ICMR. The State PCB has sought willingness for further investigation from ICMR, Bhopal, Chennai and Bengaluru.
Stand of Porus Laboratories Private Limited is that no leakage has taken place from its premises.
From the above, it is seen that large number of workers and inhabitants are adversely affected by gas leakage. According to media report, the leakage took place from Porus Laboratories Pvt. Ltd. but the said unit has denied leakage was from its unit. The State PCB has conducted some investigation but copy of the report has not been filed. According to State PCB, incident has taken place at M/s Seeds Intimate Apparel India Pvt. Ltd. in the premises of M/s Brandix India Apparel City. Learned Counsel for Brandix India Apparel City has put in appearance and submitted that the source of leakage is not from its unit.
While in view of precautionery principle, scientific proof of source is not a condition precedent for action, which can be on probabilities also, burden of proof then being on the unit to rule out its involvement, further inquiry in the matter may be appropriate to fix liability and to prevent recurrence of such incidents in future.
This Tribunal has come across violations of safety norms resulting in loss of human lives in the said area even earlier. Reference may inter-alia be made to fatal accidents in Nellore District on 29.07.2020 and 11.05.2021 considered by this Tribunal in O.A. 144/2020 vide order dated 07.12.2021 and to incident of gas leak at Vizag on 07.05.2020 resulting in death of 12 persons which was dealt with by this Tribunal vide order dated 01.06.2020 in O.A. No. 73/2020. There have been such industrial accidents adversely affecting humans and environment in Andhra Pradesh. 1. News item published in the local daily “Economic Times” dated 30.06.2020 titled “Another Gas Leakage at Vizag Factory kills two, critically injures four…”, OA No. 106/2020 decided on 22.12.2020. 2. News item published on 13.07.2020 in the local daily named “India Today” titled “Massive fire engulf Vizag chemical plant, explosions heard, injuries reported”, OA No. 134/2020 decided on 22.12.2020. 3. In re: News item in NDTV dated 14.04.2022 titled “6 killed, 12 injured after fire breaks out at Andhra Pradesh Pharma Unit”, OA No. 284/2022 decided on 20.04.2022.
The statutory safety norms are laid down inter-alia in Manufacture, Storage and Import of Hazardous Chemical Rules, 1989 (“the 1989 Rules”), Chemical Accidents (Emergency Planning, Preparedness and Response) Rules, 1996 (The 1996 Rules), Factories Act, 1948 and Disaster Management Act, 2005. The 1989 Rules require on-site and off-site plans and holding of mock drills, apart from other safety issues including siting. Chemical Accidents Rules provide for establishment of Central, State District and Local Level Crisis Alert Systems. Director Industrial Safety and State Chief Inspector of factories are to deal with the safety issues under the Factories Act. National Disaster Management Authority and other such authorities at State and District levels have been constituted under the Disaster Management Act, 2005.
Accordingly, we constitute a six member joint Committee headed by Chairman State PCB with Regional Director, CPCB, nominee of NDMA, Prof. P. Jagannadha Rao, Department of Chemical Engineering, Andhra University, Visakhapatnam, District Magistrate, Anakapalli, Director Industrial Safety, Andhra Pradesh and Indian Institute of Chemical Technology, Hyderabad. State PCB will be the nodal agency for coordination and compliance. The Committee may hold its first meetings preferably within two weeks and all or some of the Members may undertake visit to the site and interact with the stakeholders and victims to ascertain factual position. Except for site visit, other proceedings may be physical or online. The Committee will be at liberty to co-opt any other Experts/Institution. The Committee may ascertain cause of present incident and suggest measures to prevent such incidents. It may mark areas prone to such incidents and vulnerable industries so as to detect marker pollutant in case of mishaps and take immediate crisis management measures in future, apart from fixing accountability for the incident. Report of the Committee may be furnished within three months by e-mail at [email protected] preferably in the form of searchable PDF/ OCR Support PDF and not in the form of Image PDF. If any violators are identified, copy of the report may also be furnished to them so that they may file their response, if any, before this Tribunal.
Though in the present mater hearing was concluded on 01.08.2022 and order was to be pronounced within two days, it has come to our notice from today’s media report Gas Leak In Industrial Area Near Visakhapatnam, 50 Hospitalised:https://www.ndtv.com/indianews/gas-leak-in-industrial-area-near-visakhapatnam-50-fall-ill-hospitalised3218582? utm_source=newsshowcase&utm_medium=gnews&utm_campaign CDAQ8oW5wamYwMZzGK_59fnG1qmQrwEqEAgAKgcICjCPyf8KMMit-QI&utm_content= rundown that a further incident of gas leak has taken place in the area from M/s Seeds Intimate Apparel India Pvt. Ltd. in Brandix SEZ in Anakapalle District of Andhra Pradesh. This has affected about 50 people. This incident may also be taken into account by the Committee and if possible, the Committee may undertake site visit within one week and give an interim report of the factual observations, preferably within two weeks. Based on the said factual observations, further course of action may be indicated in the final report.”
In pursuance of above, report dated 14.12.2022 has been filed by the Chairman, A.P State PCB. According to the report, air and dust samples from the area and buildings of M/s Brandix Intimate India Pvt. Ltd (BIIL) shows presence of chemicals like acetonitrile, dichoromethane, ethyl acetate, n-hexane, toluene, chloromethane, cyclopropane, acetaldehyde, furan, acetone, 2-methyl propanal, n-butanol, 2-methyl furan, 2-butanone, benzene, 2, 3 butanedione, 2-methyl butanol, Chlorphyrifos. Alongwith this material, it is stated that it is yet to be
confirmed whether the air emissions were released from the said unit. Extracts from the report are as follows:-
“5.0 Description of the incidents:
5.1 First Incident on 03.06.2022:
The first incident occurred on 03.06.2022 for a short duration of about 10 minutes between 11.50 Am to 12.00 Noon. As reported by the management of the company, the employees of M/s. Brandix Intimate India (P) got affected due to inhalation of an unknown obnoxious gas and reported symptoms like vomiting, bowl irritation and breathlessness. Soon after-hearing the widespread news of the incident, the District Collector, Anakapalli, the Superintendent of Police, Anakapalli, the Addl. Superintendent of Police, Narsipatnam, the Revenue Divisional Officer, Anakapalli, the Environmental Engineer & Assistant Environmental Engineer, APPCB, Visakhapatnam and I/c Inspector of Factories & Deputy Chief Inspector of Factories, Visakhapatnam rushed to the location and inspected the premises of M/s. Brandix Intimate India (P). The sequence of activities during first incident at BIIL are as below:
11.56:30 - Camera No. 45 (M1-Area 8) - Sewing line 1 towards Quantum. 2nd, 3rd, 4th, 5th and 6th employees witnessed smell.
11:56:30 - Camera -45 (M1 Area 08) - Line one, Associates 02, 03 and 04 (Yellow marked point at M1 block)
11:57:20 - Camera -43 (M1 Area 06) - Associates hurries towards exit
11:57:08 - Camera -10 (M1 - M2 corridor) - Associate had a vomiting sensation
11:57:09 - Camera -49 (M1 Area 12) - Bottom right two employees observe the smell
11:57:22 - Camera -60 (M2 Area 01) - Associate from the third line feels discomfort and few more associates in the same line
11:57:47 - Camera -41 (M1 Area 04) - Associate runs towards the exit 11:58:50 - Camera -57 (Packing) - All felt unpleasant smell
11:59:30 - Camera -27 (Cutting 02) - Female associate feeling dizzy 11:56:40 - Camera -04 (M2 backside 01) - Associate vomiting
The workers who were admitted into hospitals day wise were given in table No.1.
Table No.1: Day wise admission of workers into Hospital
Day wise Hospital details
Date
M 1
M2
L Building
Day wise
admissions
03.06.2022
92
81
22
195
04.06.2022
76
60
22
158
05.06.2022
20
16
2
38
06.06.2022
7
6
4
17
07.06.2022
0
0
0
0
08.06.2022
0
0
0
0
09.06.2022
1
1
0
2
10.06.2022
0
0
0
0
12.06.2022
0
0
0
0
Total
196
164
50
410
5.2 Second Incident on 02.08.2022:
After two days of the joining of workers from M / s Quantum Clothing India Pvt. Ltd. into the M/s. Brandix Intimate India (P), the first incident occurred on 3-6-2022.After the first incident, the activity in the M1 building was closed till 15.06.2022 and the work in the M1 block of BIIL was resumed on 16.06.2022. The management of the M/s BIIL stopped chemical spraying for pest control work after the first incident (03.06.2022). After a gap of 59 days again the fumigation process was restarted on 01-08-2022. The Beta Cyfluthrin 2.45% SC (SC: Suspension Concentrate) chemical was used for fumigation of the outside the premises. Moreover, subsequent to the first incident, the management decided to spray the pest and insect control chemical during the night times after completion of the B or second shift (from 2.00 PM. to 10.00 PM). Accordingly, on 01-08-2022, Beta Cyfluthrin 2.45% SC was sprayed for pest control from 11.00 PM after the B shift. The chemical for pest control was sprayed for a total duration of approximately 3 hours. The pest control operator had sprayed the chemical at the verandah and outside the Ml, M2, L and N blocks. The workers, who came to work on 02-08-2022 for the first shift from 6.00 AM to 2.00 PM, did not feel/ sense any odor or smell. After their shift by 2.00 PM, they went back to their homes safely.
The other group of workers who came for the B or second shift started feeling the smell or odor from around 6:40 PM. Normally, the workers in the B shift take a break and go to the canteen in two spells. The 1st spell is from 6.00 PM to 6.30 PM and 2nd spell is from 6.40 PM to 7.10 PM. The workers who went for dinner break during the 1St spell were not affected and didn't sense any smell except a few who returned to the M1 block after completion of the first break. They completed their break for snack / dinner from 6.00 PM to 6.30 PM and returned to their duty. The workers, during the dinner break for second spell, came out from M1 block at about 6.30 PM from north side exit for going to the rest rooms besides collecting their dinner / snack boxes from lockers on the northern side of the M1 block. During this period, these workers have sensed an unpleasant odor or smell initially at lockers area and in the verandah and open space abutting the lockers area around 6:40 PM. A little later, some of the workers, who had been exposed to the odor, experienced nausea and vomiting sensation. Immediately, these workers have been moved to a safe place towards neighboring factory on west side i.e. M/s Quantum Clothing India Pvt Ltd. From there, some of the workers were shifted to the nearby hospitals and others were shifted to their homes by buses. Some of the workers, who had uncomfortable symptoms while going home, were also joined in the nearby hospitals. A total 129 workers were admitted in different hospitals located in Anakapalli and Atchyuthapuram. The details are shown in Table 2. The sequence of activities during second incident at BIIL are as below:
18.43 PM : In the mid bay (corridor) of M1 and M2, one worker from M1 block while going to canteen area sensed an unpleasant smell.
18.47 PM : Another worker from the M1 block complained about the smell to welfare officer.
18.55 PM : Unit Engineering, safety, HR and other teams also felt the smell in the mid bay area and checked for other areas.
19.00 PM : It was observed that a smell had been felt in midway exit areas (corridors) and no smell was experienced in other areas viz. inside the Ml, M2, and L blocks, the entrance security gate area of the BIIL and the open spaces at other locations.
19.20 PM : All the areas were checked continuously for detection of smell and all the AHUs and AC's were switched off as a precautionary measure.
19.20 PM : One worker was taken by wheel chair to medical room (OHC).
19.22 PM : Another worker moved from M l and M2 path ways to medical room.
19.28 PM : Another worker reported from lockers area to medical room and another associate reported from M1 path way to medical room.
19.45 PM : One more worker started vomiting and ambulance was made ready.
19.46 PM : First patient moved from the factory to Medirise Hospital, Atchutapuram by ambulance.
20.00 PM : Few more workers started complaining about vomiting, headache and dizziness. Stated evacuation of workers and shifted sick employees to nearby hospitals and got logistic support from all other Brandix units.
21.00 PM : The shift operations were suspended in all areas of the unit and started sending all the workers to their homes.
The workers who were admitted into various hospitals were discharged within a day after medical treatment. The district administration reacted promptly and reached the incident site. They along with the factory and M/s Brandix India Apparel City personnel assessed the situation and took care of the affected persons.
Table 2: No. of Workers Admitted in Different Hospitals
S.
No.
Hospital Name
No. of workers
admitted
1.
NTR
43
2.
Usha Prime
46
3.
Satyadev
14
4.
Medirise
15
5.
SreeVaibhav
6
6.
Starzen
5
Total
129
The affected people were provided medical treatment and the needy people were admitted in to different hospitals. The officials of Director of Factories, AP Pollution Control Board, Revenue, Police and other departments at the district level looked into the incident issues and conducted studies. Apart from the above government machinery, the premier institutions involved in the study to analyze the incident scenario include NIE, NIN, etc.,”
6.6…Investigation conducted by various departments:
xxx………………………………..xxx…………………………………….xxx
iii. ICMR, NIN 85 NIE: The APPCB requested ICMR-NIN on behalf of Govt. of Andhra Pradesh to investigate into the sudden unknown illness of employees of M/s. Seeds Intimate Apparel Pvt. Ltd wherein women employees were admitted in Govt. 86 Pvt. Hospitals of Anakapalli District. The Director NIN constituted a
multi disciplinary team to conduct outbreak investigation. Another team was also constituted by Dr. Manoj Murekar, Director, ICMR - National Institute of Epidemiology as per the request of APPCB. The teams visited the factory, observed CC TV footage, visited hospital and collected blood and urine samples and also conducted in depth interviews with patients and treating doctors etc., ICMR - NIN, Hyderabad and ICMR - NIE, Chennai jointly submitted investigation report. As per the report, the community diagnosis is
"The clinical picture and epidemic pattern are characteristic of a common source, single exposure outbreak. The acute clinical signs and symptoms were suggestive of inhalation of organophosphate insecticide. The biomarker of Imidacloprid, an insecticide, were found in four samples among the exposed".
This is suggestive of inhalation of Imidacloprid Insecticide, but the source of exposure might be accidental or incidental". The detailed report is enclosed as Annexure - 7.
…….
7.0 Recommended remedial measures to prevent such incidents:
Based on the field observations about prevailing working condition, involvement of huge manpower, the Committee suggests following remedial measures to prevent such accidents;
i. The unit should have proper ventilation system as per the guidelines of Industry and Factories Act
ii. Any pest/insecticide control fumigation should be taken when no workers in the working place. On application of pesticide/insecticide proper time has to give for dilution and should not impact on any workers.
iii. The unit should ensure the certified pesticides/insecticides application in inside of the building to avoid any unforeseen circumstances in future.
iv. The pest/insecticide control fumigation should be taken under the guidance of qualified/ trained person who has knowledge about proper ratio of mixing rate of application etc.,
v. The accessibility of air handling unit to be restricted to only maintenance personals and no other persons are allowed in the area.
vi. The unit should give proper and periodical mock drill training to all workers to enable them to safeguard their health 86 life in case of any unforeseen situations.
vii. Periodical medical examination of workers shall be conducted
8.0 Concluding Remarks of Committee:
The Committee visited the site / location of incidents, the surrounding areas, factories in the Brandix apparel park. The Committee examined the information collected, various reports submitted on the incident and the CC camera footages and the interactions with victims etc.,. Based on these, there are multiple external and internal sources that could have lead to the incident. Some of these are given below:
a. In the first incident (occurred on 03.06.2022), the IICT chemical analysis of various air and dust samples collected from the area inside the shed and the air handling system of M1 and M2 buildings of M/s.Brandix Intimate India (P) Ltd (BILL) (formerly known as M/s.Seeds Intimate Apparel India (P) Ltd), shows the presence of several chemicals like acetonitrile,
dichoromethane, ethyl acetate, n-hexane, toluene, chloromethane, cyclopropane, acetaldehyde, furan, acetone, 2-methyl propanal, n-butanol, 2-methyl furan, 2-butanone, benzene, 2, 3 butanedione, 2-methyl butanol, Chlorphyrifos. On the other hand, The ICMR-NIN 8s ICMR-NIE, as mentioned in their report, observed that the clinical picture and the epidemic pattern are characteristic of a single exposure outbreak. The acute clinical signs and symptoms were suggestive of inhalation of organophosphate insecticide. The bio marker of Imidacloprid, an Insecticide, were found in four samples among the exposed samples taken from 52 people. This is suggestive of inhalation of Imidacloprid. But as per the statement recorded from Sri K. Muthyalu, the pest control contract worker during investigation by Factories Department, it was found that the insecticide used on 01.08.2022 night was "Beta Cyfluthrin" but not Imidacloprid. This requires a more detailed probe and analysis.
b. The CC camera footage shows the execution of pest control activity by the concerned person across the outdoor and indoor areas like M1 block, M2 block, L block etc., at the corners of walls and floor on 03.06.2022 between 9 am to 11 am when all the workers were present at their respective work places. None of them have been found depicting any sign of sensing the smell or feeling inconvenience etc., due to application of insecticides very close to them during the application of the pesticide. The statement recorded by the Factories Department from Sri M. Gangaraju who applied the insecticide on 02.06.2022, it is clear that there was no stock of the pesticide "Alpha Cypermethrin 10%EC" which was intended for indoor spraying since 01.06.2022. It is further clear that the pesticide "Chlorpyrifos 20% EC" was used for inside and outside spraying also. In this background, it needs to be ascertained as to whether pesticides being used and their concentrations and dilution with water can create any impact on the workers that too in a scenario, as could be seen from CC footage, where the person applying spray was continuously walking with the sprayer gun thereby not facilitating the accumulation of concentration of pesticide at any given spot. This has to be juxtaposed with the deposition of the Welfare Officer Mrs Lavanya, who was around the incident scene. She was found to be comfortable in CC footages on 02.08.2022. The Committee interacted with her and she stated to the Committee that the number of workers who were affected at the incident area were few. After a while, she went to her place of work i.e., M1 block and found all the workers have gone to neighboring factory premises called M/s Quantum Clothing India Private Limited. She also went to the said neighboring factory. When she reached there, she was shocked that several workers had started exhibiting symptoms of toxic exposure in a premises where hardly smell was reported and everything seemed normal.
c. The sequential connectivity has to be established in the behavior of the workers as to how the incident can trigger and spread in the way it was shown in CC footages.
d. As per the investigation conducted by the Committee constituted by the District Collector, Anakapalli concluded that spraying of Chlorphyrifos 20% EC between the production blocks and the accumulated vapors underneath the lean to roof were sucked into the fresh air inlet ducts of 4 air handling units installed on slab of M1 86 M2 blocks there by leading to the incident. Thus, it has to be confirmed if the concerned air emissions released from the solution in liquid form (consisting of 1ml pesticide chemical in 100 ml of water) and the dispersion characteristics of the emissions led to the incident.
In view of the above observations, the Committee unanimously felt the need for conducting a separate and in-depth study of all the industrial activities of the factories around up to 1 km from M/s.Brandix Intimate India (P) Ltd (BILL) (formerly known as M/s.Seeds Intimate Apparel India (P) Ltd),. This study will help the Committee in understanding and assessing possible scenarios, which can result into such incidents, which have happened, in Brandix Intimate India Pvt. Ltd.,. This study will also help in ruling out certain probabilities for these incidents, which in turn helps the Committee to move closure to the conclusion at the earliest. The Committee has also expressed that the Andhra University at Visakhapatnam, being one of oldest and one of the best-rated Universities in the Country, may be requested for carrying out this study with a time line of 3 months. Therefore, it is humbly prayed that an additional time of 4 more months may be granted to the Committee for submission of final report in this matter.”
Submissions have been filed by NGO “Scientists for People” reiterating the submission already recorded in order dated 03.08.2022.
We have heard learned counsel for State PCB, Porus Laboratories and Brandix as no other party is represented.
We find that there is overwhelming preponderance of probabilities to hold that M/s Brandix, where the two incidents have taken place, is responsible for the incidents of gas leak affecting large number of persons. If on account of hazardous commercial activity of any enterprise any person is affected, principle of absolute liability is attracted in view of M.C Mehta & Anr v. Union of India, (1987) 1 SCC 395. It is not necessary to prove negligence. Results of sample taken from the unit establish presence of several chemicals like acetonitrile, dichoromethane, ethyl acetate, n-hexane, toluene, chloromethane, cyclopropane, acetaldehyde, furan, acetone, 2-methyl propanal, n-butanol, 2-methyl furan, 2-butanone, benzene, 2, 3 butanedione, 2-methyl butanol, Chlorphyrifos. There is nothing to rebut natural inference of nexus of M/s Brandix with the toxic gas which affected large number of victims and the environment in tow incidents. Thus, this establishment has to follow laid down safety protocols in future and compensate the victims and the environment. While any further investigation may be done, as far as present proceedings are concerned, the same can be disposed of in view of our above conclusion. Conclusive scientific evidence may not be necessary to determine liability which can be on preponderance of probabilities. The matter is governed by ‘Reverse Burden of Proof’ where the PP is to show that its activity had no nexus to the damage. Legal position on the subject is well settled in view of Vellore Citizens Welfare Forum v. UOI, (1996) 5 SCC 647 and Indian Council for Enviro Legal action, (1996) 3 SCC 212.
Accordingly, we hold that 539 workers identified in the report as having been admitted to hospital by gas leak are held entitled to compensation @ Rs.1 lac each. The PP is held accountable to pay compensation of Rs. 10 Crores. According to learned Counsel for Brandix its annual turnover is Rs.100 crore. The amount may be deposited with the State PCB within two months failing which coercive measures, including closure may be taken by State PCB. Out of the said amount, a sum of Rs. 5 Crores may be remitted by the State PCB to A.P State Legal Services Authority for being disbursed to the victims, preferably within three months, after receipt by the Authority. If there is any deficit, the State PCB may make up the same and if it is surplus, the Authority may return the same to State PCB for restoration measures. We request the A.P State Legal Services Authority to prepare an action plan for identification and payment to the victims. The remaining amount may be spent by the State PCB for environmental improvement in the area by preparing an action plan with the approval of CPCB. Such plan be prepared within one month and considered by CPCB within further one month. Restoration measures will include installation of equipments for monitoring volatile compounds in the area, apart from plantations and other measures. Restitution work be executed within six months with the involvement of all stake holders, including the PP.
The application is disposed of.
A copy of this order be forwarded to the MoEF&CC, CPCB, Chief Secretary A.P., AP State Legal Services Authority, A.P State PCB and District Magistrate, Vishakhapatnam by email for compliance.