The Civil Case: Environmental Liability

The Contamination

Keen to distance itself from the disaster, Union Carbide fled India abandoning tons of toxic waste strewn in and around the factory site. According to former UCIL workers, for years before the disaster, massive amounts of chemicals – including pesticides, solvents, catalysts and wastes – were routinely dumped in and around the factory grounds. These include deadly substances such as aldicarb, carbaryl, mercury, and several chlorinated chemicals. In 1977, the company constructed Solar Evaporation Ponds (SEPs) to contain the toxic wastes north of the factory, but they leaked or spilled over regularly.

Studies independent of Carbide between 1990 and 1999 found numerous chemicals and heavy metals in water and/or soil on and around the site and in nearby neighborhoods. These include:

• di- and trichlorobenzenes
• phthalates
• chlorinated benzenes
• aromatic hydrocarbons
• Sevin
• hexachlorocyclohexane
• lead
• nickel
• copper
• chromium
• mercury (from 20,000 to 6 million times expected levels)
• chloroform
• carbon tetrachloride,

The last two indicate long-term contamination.

This heavily contaminated groundwater is the only source for an estimated 20,000 Bhopal residents. Many of CarbideÕs most dangerous toxins were found in the breast milk of mothers living around the factory.
State government tests concluded that the chemical contamination is Òdue to chemicals used in the Union Carbide factory that have proven to be extremely harmful for health. Therefore the use of this water for drinking must be stopped immediately. (Sd. Chief Chemist, Madhya Pradesh Public Health Engineering Dept., State Research Laboratory, Shyamla Hills, Bhopal, 1999)

Responsibility

Faulty Solar Evaporation Ponds (SEPs)
SEPs are built to hold industrial toxic waste. As early as 1972, Carbide’s Engineering Department warned that the proposed design for the Bhopal plantÕs SEPs risked “danger of polluting subsurface water supplies in the Bhopal area.” Their advice: build new SEPs every year or two during the project. This advice was ignored. Carbide documents (1982) reveal that by this time the ponds were leaking.

Preliminary Study (1989)
Carbide’s own study of soil and groundwater pollution inside the site area documented 100% death rate for fish placed in the water samples. Their response: not only did they not issue a warning, they suggested it should be kept secret (internal memo) and denied there was a problem. Incredibly, they wrote to the government calling those who were creating awareness of the danger “mischievous agitators.Ó

The NEERI Report
In 1997 NEERI (governmental organization) published a report that concluded that water outside the factory was not contaminated. Carbide Consultant Arthur D Little (ADL) found it to be deeply flawed, yet Union Carbide and Dow have relied on this report in spite of the facts that

• ADL suggested that NEERI failed to find contamination because its sampling methods were flawed.
• ADL suggested it was irresponsible to claim that local water was safe for drinking
• ADL warned that groundwater contamination could happen far more swiftly and seriously than envisaged.
• ADL wrote 17 pages of suggested changes

None of the changes were incorporated in NEERI’s published report. Dow/Carbide still quotea the NEERI report, knowing it to be worthless.

Carbide’s own documents reveal that they knew for decades that their disposal practices in Bhopal were leading to massive contamination of the soil and groundwater, and that their sole concern was how to evade responsibility and cover it up.

Principle: Polluter Pays – you make a mess, you clean up

The Polluter Pays Principle (PPP) is the law in India. In particular the Environmental Protection Act (1986) and the Supreme Court in particular have noted it. The latter has ruled that PPP means Òthe absolute liability for harm to the environment extends not only to compensate the victims of pollution but also of restoring the environment degradation. (See Legal Service India)

The Government of India even emphasized that PPP applies to Bhopal: “Pursuant to the Ôpolluter paysÕ principle recognized by both the United States and India, Union Carbide should bear all of the financial burden and cost for the purpose of environmental clean up and remediation” (June 28, 2004Ñpart of the official letter issued in support of Bano v. Union Carbide- see next).

The Lawsuits: Bano v. Carbide and Sahu v. Carbide

1999:

Bhopal residents file the case Bano v. Union Carbide in United States

Federal Court. It deals with the toxic waste Carbide abandoned when it

fled India after the disaster that pollutes the groundwater. The case

seeks

1. comprehensive cleanup of the contaminated site and properties around the factory
2. compensation
3. medical monitoring for those poisoned by CarbideÕs chemical waste.

After 2 dismissals and reinstatements, the Bano v. Carbide case was dismissed yet again in August 2006.

2004: Other survivors file a related lawsuit, Sahu v. Union Carbide in the US; as a result of water pollution they seek

1. damages for personal injury
2. medical monitoring
3. court order obliging Dow/Carbide to clean up and to provide drinking water supplies for affected residential areas

2006: Case dismissed
2008: Case reinstated
2009: Case is proceeding through the system.

Interestingly, many of the internal Union Carbide documents have become public as a result of this lawsuit; they reveal the extent of Carbide’s negligence, culpability and greed in Bhopal. (See interview with the plaintiff’s US

lawyer)

Dow’s Spin

Dow/Carbide argues that the 1989 settlement with the Government of India resolved all liabilities. Obviously this is not the case, as US courtÕs willingness to consider Bano v. Union Carbide and Sahu v. Union Carbide demonstrates. The 1989 settlement dealt solely with gas disaster-related damages, not the environmental liabilities and pollution associated with the routine operation of the factory.

Dow/Carbide has found many ways to elude responsibility for cleanup by shifting the blame. But first, some historical info to keep in mind:

• The Madhya Pradesh (MP) government owns, and has always owned, the site, but it was leased by Carbide for its pesticide factory
• In 1988 Carbide returned this lease to the State government, butdid not fulfill one key provision: that the site be returned in a

  pristine state. Carbide acknowledges this.

Here’s the spin:

• Dow argues that the MP government, the “current” owner of the site,is responsible for the cleanup, thus ignoring 1) that PPP is the law.

  and 2) that the MP government always owned the site.

• Dow claims that the $300 million interest accrued on UnionCarbideÕs original 1989 settlement should be used to pay for the

  cleanup, ignoring the ruling by the Indian Supreme Court (2004) that

  this money exists solely to compensate the Bhopal victims for the loss

  of their health, livelihoods, and loved ones. (This claim turns PPP

  entirely on its head!)

• Summary: Dow has asserted 1) that local government should pay forthe clean up, and 2) 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.

On March 17, 2004 the US Second Circuit Court of Appeals resoundingly refuted DowÕs dishonesty by sanctioning further property damage, environmental remediation, and personal injury claims against Union Carbide. And in June 2004 the Indian government officially asked the court to hold Carbide liable for environmental remediation at the site.

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