Seeking a legal remedy against harmful effects of toxic chemicals and pesticides

Residents of Dwarka, the sub-city of Delhi have complained about the harmful effects of polluted waster of the drain passing by the side of the sub-city. 

The residents of Sector 3 which is nearest to the drain have stated that some of them have developed severe asthma. A part of the uncovered drain flows near the area, giving off terrible rotten eggs’ like smell and is also the breeding ground for mosquitoes. Others have stated that since the water of the drain has sulphuric acid content it causes degeneration of the home appliances like AC’s and washing machines. The copper wires get corroded very soon needing replacement and re-filling of gas in the air conditioners. These have to be replaced two to three years and causing huge recurring loss to the resident of the area. They have pointed that they have approached the DDA authorities, written to the politician and also the Ministry of health and urban development, but without any fruitful results. They have even suggested that in order to minimize the harmful health effects the authorities should resort more plantation in the area so that the pollution of the air is the barest minimum. But the problem has been aggravated by the order of the National Green Tribunal that storm water drains should not be covered. This has followed the advice of the NGT committee headed by a IIT Professor that the covering of the storm-water-drains leads to trapping of toxic gases and worsens pollution. It may be mentioned that DDA has earlier covered such a drain near Dwarka and made the road over it which has been greatly appreciated be the residents. That is another matter that it took several years as it was involved in many bureaucratic and other hassles including the environmental clearance.

The above reminds of A Civil Action, a 1999 motion picture starring John Travolta, which told America the tragic story of twelve children diagnosed with leukemia in Woburn, Massachusetts between 1969 and 1979. The parents suspected that their children contacted cancer because they drank water supplied by contaminated city wells closed in 1979. The plaintiffs faced a burden of proving that the defendants actually and approximately caused their injuries. The expert evidence was inadequate to hold the defendants liable. The jury absolved the holding company of all liability and held the subsidiary company of negligence leading to a settlement for much lower amount of compensation. In another film, In Erin Brockovich, the single mother, played by Julia Roberts, succeeded in law suit against a company which found to be polluting water.

Toxic chemicals and pesticides are a menace to the health and environment. Some of the toxic chemicals and pesticides are called the Persistent Organic Pollutants. Some of them include the DDT etc. The nature of these chemicals is that they are carbon based synthetic chemicals and pesticides which has a tendency to persist in the environment for long period and may be for years. They do not degenerate even in the earth and their life is very long. Through the media like water and air they enter the food chain and harm the health of human beings, animals and plant life. POPs are chemical substances with common properties of toxicity, persistence, bio-accumulation and potential for long-range environmental transport. These toxics travel up through the food chain. On entering the body systems, they cause slow and irreversible damage to them.These have been found even the bodies of the polar bears and the milk of Inuit mothers in the Arctic. Some of the POPs are produced intentionally and others like Dioxin unintentionally from various sources like burning and production of steel etc. DDT and PCBs’ residues remain in the soil for long years and are found in the fish, birds, reptiles and animals. Such substances contaminate the human environment and accumulate in the tissues of plants and the germ cells to shatter or alter the very basis of heredity. There is perpetual veil of ignorance whereas the rivers and lakes are contaminated. Fetuses are exposed to them through the mothers and finally through foods, water and air. Exposure in adults is linked to cardiovascular disease, endocrine disruptions, breast cancer and leukemia. People consuming wild food, large fish, and marine mammals and at high latitudes have high exposure.

The problem of POPs is in fact global, requiring cooperation of the States at the international level for their elimination and control. As such the United Nations had adopted Stockholm Convention on POPs in 2001 which directs the states to target elimination of toxic chemicals and pesticides. The main source of such substances is hazardous wastes. Their movement across national boundaries had become a serious international problem and the developing countries had become the dumping ground for the wastes of developed countries. Accordingly, international movement of hazardous wastes was sought to be regulated by the Hazardous Waste Convention 1989 and subsequently also developed a Liability Protocol for compensation to be paid for harm caused due to accident on account of movement of hazardous wastes. Rotterdam Convention 1998 also targeted the regulation toxic chemicals and pesticides across national boundaries. All these treaties, however, allow compensation to be paid due an accident caused. The Stockholm Convention has not developed any liability protocol. Focus is only on injury caused by the accidents.

The harm caused by these chemicals and pesticides take time even years to manifest. The infection may have been caused years ago and take time to appear in the form a disease. If an infection is caused in normal course the insurance policies also do not cover the damage caused to the health in the form of slow poisoning. Insurance companies insist that when the infection is caused or the injury is caused as a result of an accident the claim is maintainable. They are supported by the Supreme Court judgment in Sandeep Kumar Chowrasia V. Divisional Manager, New India Assurance Company where a distinction has been made between an injury due to an accident and the one due to long term harm caused by the chemicals and pesticides. The insurance policy allows a claim only if the harm or loss is due to complications arising out of the accident. This means that there must be some nexus between the accident and the loss. In the environmental law cases also the apex court has laid down the absolute liability principle making the holder of hazardous premises absolutely liable for any damage or injury caused as a result of accident. Here also liability is based on the accident.

But in the cases like that of damage to Taz Mahal by the fumes of Mathura refinery the apex court issued directions to take steps avoid damage to the historical building by polluting substances. In the developing countries, the individuals suffering damage to health or getting injured due to harmful toxic substances can sue the producers of such substances if the there was evidence that damage or injury was caused by them. The standard laid down by the courts was that the harmful effects of such substances were the proximate cause of the said damage or injury. However, establishing such incriminatory evidence is a difficult task requiring expert evidence which is hard to come by. But this route of seeking remedy is worth the effort. The Agent Orange Litigation in the United States is an instance of successful story of getting compensated as a result of sustained judicial process and subsequent negotiating process.

In the nuisance cases, like the one existing in the form of the polluted storm water drain, the civic agencies which are responsible to maintain it in proper form to avoid unhealthy conditions are also legal liable for any damage or injury caused the health and the environment. The citizens have a legally enforceable right to pollution free environment.

Citizen’s Reporter
Dr. P S Nerwal, LL.B, LL.M, PhD, IRTS(R)
Ex Member, Railway Claims Tribunal (R).

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