Like with any other sector, there is a complex web of laws in India that governs preparedness and response to chemical accidents.
By James J. Nedumpara & Akshaya Venkataraman
In the midst of the unrelenting COVID-19 crisis, India woke up to another tragedy – a gas leak that has already claimed 11 lives in Vizag, with many more critically ill. On the same day, in the Raigarh district of Chhattisgarh, a gas leak at a paper mill resulted in the hospitalisation of 7 mill workers. Unfortunately, India is not unfamiliar with the experience of chemical accidents. While the Bhopal Gas tragedy remains one of the darkest memories of India’s past, the National Disaster Management Authority of India reported 130 ‘significant’ chemical accidents in the last decade alone. These experiences bring into focus India’s regulatory capacity for preventing and mitigating chemical accidents while increasing accountability.
Like with any other sector, there is a complex web of laws in India that governs preparedness and response to chemical accidents. One way to better understand this regulatory framework is to group them into four loose categories based on the purpose they serve –occupational health, hazardous chemicals, mitigation of accidents and redressal for victims. Rules governing the safety of the workers employed in factories and industries, such as the Indian Factories Act, 1948 and The Dock Workers (Safety, Health & Welfare) Act, 1986 fall within the domain of labour legislation. These legislations regulate working conditions of individuals employed at sites of industrial activity and prescribe rules for the maintenance of site safety. Labour laws in India are currently being reformed and a consolidated Occupational Safety, Health and Working Conditions Code have been introduced in the Lok Sabha in 2019.
The second kind of regulation deals directly with the handling of hazardous chemicals. The Manufacture, Storage, and Import of Hazardous Chemicals (MSIHC), Rules, 1989, issued by the Ministry of Environment and Forests(MOEF) is the most significant among them. The MSIHC rules are only applicable to specific hazardous chemicals. The rules prescribe safety measures to be taken by industrial installations handling hazardous chemicals, such as notifying the site of such activity before commencement, preparing safety reports and conducting regular audits. The Chemical Weapons Convention Act, 2000 which adopts the International Chemical Weapons Convention, also prohibits the use and acquisition of certain toxic chemicals, in addition to regulating chemical weapons.
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The mitigation of chemical accidents once they have already occurred is regulated by the Chemical Accidents (Emergency Planning, Preparedness and Response) (CAEPPR) Rules, 1996, and the Disaster Management Act of 2005. The Disaster Management Act applies to all ‘disasters’ resulting in ‘substantial’ loss of life or destruction of property and sets up the NDMA (and State disaster management authorities) to mobilise a response to disasters. The CAEPPRrules are applicable to all chemical accidents regardless of scale, casualty, or cause. These rules create crisis management groups at the Central, state, district and local level that works with factories and industries to monitor emergency preparedness plans, manage responses to accidents, conduct post-accident analyses and suggest measures to prevent a recurrence.
The final set of laws provide recourse to victims of such accidents. Bhopal Gas Leak (Processing of Claims) Act, 1985 and the Public Liability Insurance Act, 1991 are examples of such legislation.
Can laws alone prevent the recurrence of incidents such as Vizag? Perhaps not. However, unavailability of information is a key impediment to the management of risks associated with the use of chemicals. The schedule of hazardous chemicals under MSIHC, according to the MOEF, lists only 684 chemicals currently, although the actual the list of chemicals in use in India is likely to be significantly higher. It is possible to classify some substances as hazardous based on past experiences or inherent properties. However, without a robust inventory of all chemicals used in industrial processes in India, it is impossible for a regulator to create rules for the informed handling of chemicals.
The creation of a dynamic repository of chemicals built on the regular supply of information by the industry on chemical properties, their uses, and the risks they pose based on their exposure to vulnerable groups and their geographical location in India will be instrumental in preventing chemical accidents. It is essential that this database is complemented by recruiting established technical experts. These experts will regularly monitor this data and on a periodic basis identify hazardous chemicals, which need to be restricted or phased out of use.
On the face of it, such an exercise appears to be a herculean task but there is much to be gained from studying the experiences of other countries. The European Union’s REACH regulation, considered one of EU’s most complex but successful legislations, introduced this model of inventorying chemicals and regulating their use based on this inventory in 2007. The EU currently has a database of over 22,000 chemicals which is publicly available for anyone to access. South Korea, China, United States, Australia and Turkey, among others, have followed suit and are in the process of or have already implemented omnibus chemical regulations which interweave the management of chemical accidents with a repository of chemicals that is periodically updated.
India intends to follow suit and the Ministry of Chemicals, in tandem with the MOEF, has initiated the process for the development of such an inventory. An omnibus chemical regulation has been proposed which seeks to link the prevailing CAEPPR rules and the MSIHC rules to a regularly updated database of chemicals. At this juncture, India stands to benefit from the past experiences of other countries and tailor the regulation to reduce the burden on smaller industries. India could also potentially access the inventory of chemicals built by other jurisdictions and understand the potential risks of chemicals already in the Indian market.
Needless to say, it is a long road ahead. A database of chemicals is only the first step, and continuous monitoring and regulation based on such information is the necessary next step. Nevertheless, the fact that this process has already been initiated is a step in the right direction to prevent the recurrence of another tragedy like Vizag.
(The Authors are respectively Professor and Head, and Senior Research Fellow at the Centre for Trade and Investment Law, Indian Institute of Foreign Trade, New Delhi. Views expressed are personal.)