Like any self-respecting criminal, Dow has prepared its story - neatly fashioned into small soundbites. As it's easier to tell a fib than to explain the truth, please bear with our point by point break down of these lies of commission and omission:

DOW SAYS:
“On February 14, 1989, a settlement agreement was reached
between Union Carbide, Union Carbide India Limited and the
Indian government through which Union Carbide paid $470 million
in compensation, covering all claims relating to the incident.”

THE FACTS:
Retired Chief Justice P.N. Bhagwati named the out of court settlement between Carbide and the government of India, “The Travesty of Justice”. Neither survivors nor their representatives were consulted. Nevertheless, the settlement of 1989 protects Dow-Carbide only against civil liabilities arising out of the 1984 gas leak. It does not cover or apply to any liabilities arising from the quite separate issue of massive ongoing pollution at the factory site of the ground and ground water.

DOW SAYS:
“On October 3, 1991, the Supreme Court of India announced the
findings of its review of the settlement agreement. They upheld the
settlement concluding that the amount was just, equitable and
reasonable.”

THE FACTS:
There were two kinds of liability mentioned in the 1989 settlement, civil and criminal. Originally, both were extinguished but what Dow-Carbide never mentions publicly is that the settlement was modified by the Indian Supreme Court in 1991, when it revived criminal proceedings and thereby reopened the criminal liabilities. In reinstating the criminal charges, the Supreme Court recognised that the act of extinguishing them in the 1989 settlement violated a core principle of criminal justice: a person charged with a crime cannot simply pay his way out. Carbide's legal team were present at the Supreme Court’s decision and were too busy celebrating the upholding of the financial settlement to appeal the revival of criminal proceedings.

Before the original Bhopal case was transferred from New York to India in 1986, on grounds of 'forum non conveniens', Carbide had argued long and hard that the Indian Courts were highly competent and the only proper forum for the case. In acceding to these arguments and transferring the case in 1986, Judge Keenan clearly stipulated that his decision rested on a number of conditions, one of which was that Carbide abide by any decision in the Indian courts which "comport with the minimal requirements of due process". The Supreme Court judgment of 1991 that reinstated criminal charges clearly meets this condition, meaning that Carbide are bound by the US and Indian courts to appear in the criminal trial.

Warren Anderson and Carbide have now been absconding from the criminal case since 1992. Both man and company have been declared "fugitives from justice" in India, and are also in breach of conditions set in the US courts. The criminal case allows for both punitive and restitutionary fines to be imposed upon Carbide, who, just like Anderson, have been charged with culpable homicide amongst other offences. If convicted, Carbide can be sentenced to a fine which has no upper limit. Such penalties are decided based on the magnitude of the crime (in this case, the world’s worst industrial disaster), the stature and ability of the accused party to pay (Dow is the world’s largest chemical corporation) and the current state of the victims. Therefore Dow Chemical’s Bhopal liabilities, inherited from Union Carbide, could potentially amount to billions of dollars. Perhaps this is why, in May 2003, CEO William Stavropoulos lied about the outstanding criminal case at Dow’s AGM before the company’s assembled shareholders.

DOW SAYS:
“Within those same findings, the Supreme Court also directed that
the Government of India make up any shortfall which might in the
future arise in the settlement fund and ordered it to purchase a
group medical insurance policy to cover 100,000 citizens of
Bhopal in case of future illnesses. These measures were
specifically put in place to address any potential future issues
arising from the tragedy.”

THE FACTS:
The Supreme Court’s order applies only to civil claims and bears no relation to the entirely separate matter of environmental contamination or potential criminal fines. The Government of India, for its part, had grossly underestimated figures for the dead and injured in Bhopal in the build up to the treacherous out of court settlement. The settlement figure of $470 million was based on the Indian govt’s official figures, in 1989, of 1,754 dead and 200,000 injured. But, if spread equally, the $470 million was equivalent to only $793 each for the 592,000 who had already by that time filed claims. As of the end of 2000, 533,360 injury awards had been made via the compensation process, and 14, 410 death awards, bringing an average compensation of $529 and $1,170 respectively. Numberless victims have also been excluded from the compensation process in one way or another.

DOW SAYS:
“Two years later, on October 4, 1993, the US Supreme Court
reaffirmed earlier US Court rulings that the only State with
jurisdiction in the case against Union Carbide on matters relating
to the Bhopal tragedy was India. They based this decision on the
fact that UCIL was a separate and independent legal entity,
managed and operated exclusively by Indian citizens in India.”

THE FACTS:
No US court has ever rejected the assertions made by the Indian government and by Bhopal survivors on their merits, only on jurisdictional and procedural grounds. US court findings have at all times been based upon limited discovery centred on issues of forum. In fact, the US Court of Appeals inserted a caveat into its judgment that, for this reason, its remarks should not be seen as prejudging the ultimate question of liability.

What we now know is that, not only did Carbide install an ultra-hazardous process (the MIC process) in order to escape Indian regulations (FERA) requiring a dilution of foreign equity holdings to 40%; they also under invested in this process by over 25% ($20 million instead of $28 million) - using unproven technology to keep costs down - simply in order to retain their small majority shareholding of 50.99%. Ironically, the dye of a disaster Carbide has blamed on Indian management was cast during the company's efforts to maintain substantive control over its Indian managers.

The following is an excerpt from the amended US Class Action in 2000. It focuses on Carbide's efforts to keep their majority stake in UCIL and thereby retain substantive control of the operation:

• Union Carbide owned 50.99% of UCIL at the time of the Disaster, thus making it, in Carbide's own terminology, a subsidiary. Pursuant to Union Carbide's internal policies, a subsidiary could not change the substance of any policy without review by the parent corporation.
• During this period of time, Union Carbide's corporate charter provided that the management system of the multinational is "designed to provide centralized, integrated corporate strategic planning, direction, and control." The Company's corporate policy manual states that "it is the general policy of the Corporation to secure and maintain effective control of an Affiliate.
• On January 1, 1974, however, India enacted the Foreign Exchange and Regulation Act ("FERA") which required all foreign equity holdings to be reduced to no more than 40%. UCIL was one of the companies affected by FERA since it had a foreign equity ownership of 60% when FERA came into force.
• In order to avoid the application of FERA, which would reduce its equity share of UCIL, Union Carbide submitted a plan and proposal to the Government of India to produce MIC at its Bhopal plant which, under a specific statutory exemption to FERA, would enable the Defendant to retain majority control since it was engaging in production of a nature which required high-technology inputs not available in India. Therefore, the very decision to manufacture MIC at the Bhopal plant was made by Union Carbide in furtherance of its corporate policy to secure and maintain "effective control" of an affiliate. Indeed, Union Carbide actually produced an internal manual "Legal Control of a 50-50 Joint Venture Affiliate" which lists a number of "devices or expedients" on how to retain control of an affiliate. Another publication entitled "Master Guidelines and Check List for Matters to be Considered in Organizing and Reorganizing Equity in an Affiliate" details how to ccomplish this key corporate objective. Since FERA prohibits foreign equity holdings of 51% or greater, Union Carbide was able to secure its exemption and retain precisely 50.99% of its ownership of UCIL.

That UCC did indeed maintain effective control of UCIL, and is thereby deeply implicated in the 1984 disaster and its consequent liabilities, is borne out in the following:

1. Technical manuals being used at the Bhopal plant were all based on original UCC documents.
2. The works manager in charge of the Bhopal factory on December 3rd 1984, Mr J Mukund, was trained in the US by UCC.
3. All designs for the Sevin, Temik, Phosgene and MIC units came directly from UCC under the terms of the 'design transfer agreement' set out in the 1973 UCC Capital Budget Plan released by plaintiffs in the New York Class action in November 2002. Warren J. Woomer, a Carbide engineer who spent time in Bhopal, said in an affidavit submitted to the Southern District Court of New York that he had approved the designs by tracing ''every line, every valve, every instrument'' when the factory started up. A Carbide memo released under discovery in 1986 said, ''No design changes have been made without the concurrence of general engineering or Institute plant engineering'', referring to Carbide's corporate engineers in Institute, West Virginia.
4. The design plans for the three critical safety systems that failed during the Bhopal disaster - the vent gas scrubber, the flare tower and the water spray system - all came from UCC.
5. Even the connecting pipe in the MIC unit between the Relief Valve Vent Header and the Pressure
   Valve Header - which may have played a critical role in the disaster - was authorised by UCC engineers in 1983 in accordance with the design review process detailed in the 1973 documents.
6. Safety audits at the Bhopal plant were performed by UCC engineers. After the 1981 incident that killed the UCIL worker Ashraf Khan, a Carbide telex said that improvements ''will receive close attention by the management committee in New York'', and that it was ''very essential'' the committee know the ''specific actions'' to prevent recurrence. A Danbury spokesman said, in December 1984, ''Union Carbide regards safety as a top priority. We take great steps to insure that the plants of our affiliates, as well as our own plants, are properly equipped with safeguards and that employees are properly trained.'' Carbide’s corporate policy manual set out that all safety incidents involving fatalities or near misses, of which there were a number in Bhopal, “will be reviewed by the UCC chief executive officer”, namely Warren Anderson.
7. In an affidavit filed before the New York court of Justice Keenan, the Argentinian Edward Munoz, at one time the Union Carbide-appointed managing director of the Indian subsidiary, stated that a Union Carbide engineering group responsible for designing the Bhopal plant had recommended the installation of three large tanks for storing methyl isocyanate. Munoz opposed the design because "only token storage was necessary, preferably in small containers, based on both economic and safety considerations." He said he was overruled. According to independent studies, such as the Centre for Scientific and Industrial Research, the volume of MIC stored in Bhopal was the most critical factor in the disaster.
8. A corporate spokesman in Danbury (speaking to the New York Times, Jan. 27 1985) said Union Carbide has ''an ongoing operations improvement program which involves, among other things, a regular review of ways to reduce costs.'' He said Union Carbide India was involved in such programs, ''but the details of those programs at the Bhopal plant are not known to us.'' The MIC refrigeration unit, designed to keep MIC at 0 Degrees C as per the Carbide safety manual, which had it been working could have slowed down a runaway reaction sufficiently to allow for an intervention, was put out of use to save $40 a day in Freon gas “because the (UCIL) managers had concluded after discussions with American headquarters that the device was not necessary.” (ibid)
9. The Bhopal plant was an integral part of Carbide’s global agricultural-products division, based at corporate headquarters in Danbury, Connecticut. Union Carbide India operated under the company's regional division, Union Carbide Eastern, based in Hong Kong, with four of the latter's top executives on the Indian subsidiary's board. UCC itself had direct representation on UCIL’s board, in the shape of J. M. Rehfield, executive vice president in Danbury. V.P. Gokhale told the New York Times in 1985 that “the board of directors reviews reports on the Indian affiliate's operations.”

Thus, besides designing the Bhopal plant, defining operating systems and procedures, setting standards and training personnel, Carbide closely monitored the plant's operation. Consideration of all of the above suggests any attempt to portray the relationship between UCC and UCIL as 'hands-off' to be a shameless misrepresentation of the facts.

DOW SAYS:
“In November 1994 more than six years before Dow acquired Union
Carbide Union Carbide sold its interest in Union Carbide India
Limited to MacLeod Russell (India) Ltd. of Calcutta (later renamed
Eveready Industries India Ltd. or EIIL). As a consequence of that
sale, Union Carbide retained no interest in or liability for the
Bhopal site. EIIL took exclusive possession of the land under
lease from the government of Madhya Pradesh. The money from
this transaction was used to fund a hospital in Bhopal that which
now provides specialist care to victims of the tragedy.”

THE FACTS:
a. At least one document disclosed by Carbide during the Class Action in New York strongly contradicts the claim that Carbide had no interest or involvement in the Bhopal site after the sale of its UCIL shares. This consists of a memorandum dated April 6, 1995 memorializing a discussion which took place, with slide presentation of talking points, on March 20, 1995 at “BPDO, Rainey Park.” (UCC 02909). The document provides conclusive evidence that Union Carbide was still, as of 1995, directing the “Bhopal Plant Site Rehabilitation”:

"SB clarified that UCC wanted the Bhopal plant to be detoxified and the land and ground water components of the environment to be restored to standards as followed by the EPA-USA. Since
ADL are quite experienced in this kind of work, they were selected to provide consultancy to UCIL.

"AC explained that as per the terms of the lease of the land taken from the State Government it is to be surrendered, in usable and habitable condition. This required environmental investigation and remediation of site before handing over to Government…

"It was summarized [sic] that the site rehabilitation work in hand has to be brought to completion before handing over land to Government or any other agency…"

Arthur D Little, consultants to Carbide and UCIL regarding the site rehabilitation from 1989 onwards, continued to work with EIIL after the buy out. C.K. Hayaran, the former UCIL site manager, who was trained by Union Carbide in the United States, continued as site manager after the change to EIIL, alongside a number of other former UCIL officials; in fact there seems to be very little outer difference between UCIL and EIIL.

b. In respect of the hospital, Dow omits to mention that it was the Indian Supreme Court who dictated that Carbide must build it, and with money from their own coffers. Instead, Carbide found a way to use their shares in UCIL to pay for the hospital, even though those shares had been attached by the CJM, Bhopal in 1992, as a result of Carbide's non-appearance in the criminal case. By selling their shares in UCIL, Carbide squirmed out of the criminal case and gained an attractive pr strategy. The hospital, for what it's worth, took almost ten years to open and by 2001 was already profiteering with private patients, despite being bound to provide treatment to the gas-affected for eight years "in the first instance". Nor has the management of the hospital seen fit to consult relevant medical expertise in determining how to go about treating the gas affected.

DOW SAYS:
“In 1998, the government of Madhya Pradesh revoked the EIIL
lease for the Bhopal site, reclaiming the property "as is" and
stating it would take responsibility for managing any cleanup or
remediation work required on the site.”

THE FACTS:
It is entirely false to say that the Madhya Pradesh government has stated it would take responsibility for managing the ‘clean up or remediation work’ at Carbide’s Bhopal factory. In addition to the MP government’s recently stated intention to make Dow pay for the decontamination, a department of the government, the Madhya Pradesh Pollution Control Board (MPPCB) in 1999 submitted court documents demanding that EIIL remediate the site contamination.

In fact, Carbide were bound under the terms of their site lease to return the land in usable and habitable condition, as Carbide themselves recognised at that 1995 meeting in Rainey Park. Instead, the company undertook some cosmetic remediation work, which they were fully aware did nothing to diminish the danger of contamination to local aquifers, before requesting local government departments to take back the lease. Carbide also publicly quoted contamination studies that they knew to be unsound, even while their own studies demonstrated 100% mortality to fish exposed to the contaminants. Nevertheless, another department of the MP government gullibly took the site lease back from EIIL in July 1998: the District Industries Centre, which handles licensing requirements for local industries, leases, and other such matters. This department does not possess the authority or jurisdiction to determine who should undertake a decontamination of the factory site, and is absolutely lacking the means to do the work itself.

Moreover, the question of the site lease and who holds it is in essence one enormous red herring. Dow are supposedly committed to the practise 'Sustainable Development', which amongst many other things includes the upholding certain internationally recognised laws and doctrines: one such doctrine is the Polluter Pays principle, which is statutory law in the US and in India and common law in other parts of the world. In India, the Hazardous Waste (Management and Handling) Rule of 1989 594(E), Section 3 Sub section (1) and Section 4(1), stipulates that the producers of the contaminated waste are responsible for decontamination. The “polluter pays” principle is also enshrined in the Environmental Protection Act, passed in India in 1986. There is nothing that can absolve UCC, the polluter, from the responsibility of having created the contamination in the first place. Yet at different times, Dow has said both that local government should pay for the clean up AND that gas survivors should pay: the first is in contravention of lawful principle and common sense, while the second contradicts all notions of human decency.

Finally, Dow oft refers to the marvels of its 'Responsible Care' programme, developed by the Chemical Manufacturer’s Association’s Public Perception Committee in the aftermath of Bhopal. In Dow literature, 'Responsible Care' contains the promise "to work with others to resolve problems associated with past handling and disposal practices". Dow is therefore legally, morally and logically bound to accept responsibility for the remediation of the Bhopal site.

 

Dow: Corporate Criminal Par Excellence

“Does it not seem unfortunate,” Congressman Leavy of Washington asked in 1942, “that this great nation in its hour of peril must depend upon a group whose misconduct will have been officially established in connection with strangling production by contract agreement with our enemies?”

Leavy was talking, besides a few others, about Dow Chemical and the patent cartel they had operated in with I G Farben - infamous instrument of Nazi economic domination - until WWII was underway. Investigations by the Truman Committee in the early 1940’s discovered that Dow sold magnesium, a material vital to the war industry, to Nazi Germany for 21 cents a pound while maintaining a 30-cent price in the US. “Our own Dow Chemical Company,” said Congressman Rabant in 1942, “was the sole licensee in this country and agreed to sell only a small amount to England.” As a result of Dow’s treachery, by 1940 American output of magnesium was 6,000 tons while Germany’s was 25,000 tons, giving the Nazi war machine a distinct advantage in aircraft production.

When the matter came up during the Nuremberg trial of twenty four I G Farben corporate officers in 1947, Willard H. Dow, then chairman of the company, apparently said: “We never had any contract with Farben.” The Nation called Dow’s comment, in the light of numerous investigations, “an amazing statement”. Plus ca change.

The chief suspect at the trial of IG Farben was Otto Ambros, production chief of I.G. Farben's poison gas facilities. A subsidiary of Farben manufactured Zyklon B, the poison of Auschwitz, whose chief ingredient was hydrogen cyanide: the same chemical found in the bodies of Carbide’s victims in Bhopal (and now a part of Dow’s global manufacturing). Ambros was convicted for crimes against humanity, including slavery and murder, and sentenced to eight years in prison in a ruling highly significant to the development of international law for corporate crime. However, Ambros’ reputation as ‘The Devil’s Chemist’ didn’t make him any less attractive to Dow upon his release from jail: they were so enamoured that they invited him to come and work with them in the US.

History is one thing, but Dow do not appear to have learnt a thing from theirs: instead, over the years, they’ve developed quite a habit of corporate impunity. Here’s a quick guide to some of their better known crimes:

Agent Orange: Dow was one of the key suppliers of Agent Orange – a deadly chemical cocktail known to be highly contaminated with dioxin – nearly 21 million gallons of which was sprayed over Vietnam during the war. The chemical warfare poisoned between 2.1 million and 4.8 million Vietnamese, according to Columbia University researchers. Entire regions of Vietnam remain so highly contaminated that children are being born with serious deformities to this day. In the 1984, Dow paid $180 million to 4000 Vietnam Veterans for Agent Orange-related damages. The Vietnamese and other affected veterans remain uncompensated.

Plaquemine, Louisiana: In 2002, residents of Myrtle Grove Trailer Park in Louisiana sued Dow Chemical for contaminating their groundwater with Vinyl Chloride, a known carcinogen, and withholding information about the contamination.

Midland, Michigan: Dow’s factories at its global headquarters are thought to have contaminated large areas outside the facilities, including the Tittabawasee River plains. Twenty-nine of 34 soil samples taken in Midland had dioxin levels higher than state cleanup standards. Some samples had levels up to 80 times higher than cleanup criteria prescribe. A lawsuit claiming damage to property value by nearby residents is pending in a US court.

Dursban Legacy: Dursban, a deadly insecticide produced by Dow, is implicated in serious health effects, including neurological damage in children. In 1995, the USEPA fined Dow $732,000 for failing to disclose the adverse health effects associated with Dursban use. In early April 2003, NY state attorney general announced his plans to sue Dow Agrosciences for falsely advertising that Dursban is safe. Despite having voluntarily withdrawn Dursban’s use in homes, Dow continues to market the pesticide in other countries including India.