NDTV (New Delhi Television) one of India’s prime news channels, yesterday received a letter from Dow spokesman Scott Wheeler claiming that the case to hold Dow responsible for cleaning up Bhopal had been concocted by “activists”. “There are some,” Wheeler wrote, “who continue to try to affix responsibility for the Bhopal tragedy to Dow, but the fact is that Dow never owned or operated the facility in Bhopal.”

There are actually two Bhopal tragedies. The first was the 1984 gas leak. Nobody is trying to hold Dow responsible for that (although it does have the responsibility of producing its subsidiary Union Carbide Corporation to face unanswered criminal charges). Dow’s repeated assertions that it “never owned or operated the facility in Bhopal” are a red herring, attempting to focus and confine attention to the 1984 gas leak and to avoid drawing attention to the second tragedy.

Bhopal’s second disaster

Within five years of the gas leak, with hundreds of thousands in the city still seriously ill, Union Carbide Corporation was aware of a second disaster, which it tried to keep very quiet. This was the lethal contamination of soil and water caused by toxic chemicals leaking from the factory site and from huge open air “solar ponds” a short distance from the site. Carbide’s silence lasted ten years until in 1999 a Greenpeace report revealed the extent, nature and seriousness of the contamination. During those years of silence families already decimated by the gas were poisoned again, children were being born malformed, or brain-damaged. In the decade since the Greenpeace report, the contamination has grown more severe.

[pullquote] The rate of birth defects in the parts of Bhopal where the water is contaminated is ten times higher than in the rest of India.[/pullquote] The water supply of 30,000 people is poisoned. Cancer-causing and mutagenic chemicals are present in drinking water, blood and the milk of nursing mothers. The rate of birth defects in the affected areas is running at ten time the rate for the rest of India. For this Union Carbide Corporation is liable and Dow Chemical as owner of Union Carbide, inherits that liability.

Its not just activists who want Dow to clean up Bhopal, Mr Wheeler. So do members of the US Congress, UK House of Commons, European Parliament, Scottish Parliament, academics, writers, journalists, film-makers, actors, musicians, trade unions, students, Amnesty International, Greenpeace, hundreds of other NGOs and huge numbers of ordinary decent people worldwide.

Dow’s PR and the facts it is designed to obscure

Here for the benefit of anyone who ever has to deal with a Dow public affairs spokesperson are the facts the statements are designed to conceal. Dow’s statements to NDTV are given in italics, the facts in bold type. Please follow the links for more detail and for source documents.

Dow says: The solution to this problem . . . rests in the hands of the Indian Central and state governments.

Fact: On June 28th, 2004, the Indian government wrote to the Southern District Court of New York, where the survivors’ lawsuit concerning contamination in Bhopal had been reinstated by the US appeals court. “Pursuant to the ‘polluter pays’ 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. The Union of India and the State Government of Madhya Pradesh shall not bear any financial burden for this purpose.”

Dow says: Remediation of the Bhopal plant site is under the oversight of the High Court of Madhya Pradesh in Jabalpur. We respect the court and the efforts that it is making to direct the remediation plan for the plant site, which is being funded by the state and central governments . . . The government of Madhya Pradesh, which today controls the site, is working to get the site cleaned up and Dow is hopeful that they will be allowed to follow through with their plans.

Fact: The government of Madhya Pradesh said it would ensure the remediation work got done, not that it would assume liability for the mess, nor pay for it: ‘Under the Hazardous Waste (Management and Handling) Rule 1989 594(E) Section 3 Sub section 1 and Section 4(1) whoever has produced the contaminated waste, it is his responsibility to decontaminate it. . . As per rules it is the responsibility of Union Carbide Bhopal to pay for all the expenses being i[n]curred on the above work.’ Letter from Government of Madhya Pradesh to the High Court in Jabalpur.

Dow says: In 1991, the Indian Supreme Court upheld and affirmed that settlement as complete and final. Union Carbide has no further legal responsibility for the matter.

Fact: In its 1991 judgement the Supreme Court, while upholding part of the settlement, modified it to reinstate criminal charges against Union Carbide Corporation, its then-CEO Warren Anderson and Union Carbide Eastern. These defendants refused to accept the jurisdiction of the court and never showed up for trial. Union Carbide Corporation, now wholly owned by Dow Chemical is still officially a fugitive from justice in India. As Union Carbide’s owner, Dow ought to ensure that its subsidiary answers the outstanding criminal charges.

Furthermore, the settlement did not cover the contamination. In its letter to the New York court of June 28, 2004 the Government of India made this very clear: “Finally, it is the official position of the Union of India that the previous settlement of claims concerning the 1984 Bhopal Gas Disaster between Union Carbide and Union of India has no legal bearing on or relation whatsoever to the environmental contamination issues . . .”

Dow says: The Dow Chemical Company has never owned or operated the facility in Bhopal nor does Dow have responsibility for any liability related to Bhopal . . . The Dow Chemical Company entered the picture well after the settlement between the Government of India and Union Carbide and Union Carbide India Limited and well after Union Carbide sold all Indian assets and was no longer doing business in India.[pullquote right]The Ministry of Law…has observed that irrespective of the manner in which UCC (Union Carbide Corporation) has merged or has been acquired by Dow Chemical, if there is any legal liability it would have to be borne by Dow Chemical.[/pullquote]Fact: On February 2, 2008 an opinion from India’s Ministry of Law was passed on to the Prime Minister’s Office: “The department has consulted the Ministry of Law, which has observed that irrespective of the manner in which UCC (Union Carbide Corporation) has merged or has been acquired by Dow Chemical, if there is any legal liability it would have to be borne by Dow Chemical.”

NDTV has commented on this in an article published today.

Dow says: When Dow acquired the shares of Union Carbide Corporation in 2001, it was with the understanding that Union Carbide had settled its civil liability with the Government of India and that the Government and Indian Courts honour their decisions and their commitments.

Dow knew perfectly well that the criminal liability of Union Carbide Corporation with regard to Bhopal remained unresolved. The Supreme Court had revived Union Carbide Corporations’s criminal liability in its judgement of 1991, ten years before the Dow-Carbide merger. Neither Dow nor Union Carbide declared the unresolved criminal liability in their SEC merger submission.

Union Carbide Corporation, has yet to answer the criminal charges and for 18 years has refused to accept the authority of the court. This is the same Union Carbide which in 1986, after persuading a New York judge to transfer the criminal proceedings from the US to India, bound itself to accept the authority of Indian courts. It is not the Indian courts, but Union Carbide and Dow which have refused to honour their decisions and commitments.

Additionally, UCIL – the company that controlled the site when the tragic events took place – exists today in the form of Eveready Industries India Limited.

At the time of the gas leak, UCIL was owned by Union Carbide Corporation, which retained a 50.9% shareholding in order to keep control of the Indian subsidiary. This majority shareholding had been threatened by the Indian governments introduction of the FERA act, 1973, which reduced foreign equity holdings in Indian companies to a maximum of 40%. To get round this, Union Carbide Corporation proposed to the Indian government that it would begin manufacturing MIC (methyl isocyanate) at the Bhopal plant, which until then had just formulated pesticides with imported ingredients. The MIC technology was highly hazardous for which reason, UCC told the Indian government, it would need to retain control of the process. Union Carbide Corporation engineers designed the MIC plant (using untested technology to effect savings of some $8 million), and insisted on the installation of three giant tanks, the size of rail locomotives, to hold liquid MIC. MIC is so dangerous that it is generally used as it is made and never stored. The tanks were opposed by Edward Muñoz, himself a UCC appointee as UCIL’s first managing director, but he was overruled from the US. The huge programme of cost-cutting that halved the factory’s workforce, cut the staff of the MIC unit from 12 to 6, and reduced safety training from six months to two weeks, was carried out under orders from the US based “Bhopal Task Force” overseen by Warren Anderson, and relayed to Bhopal by Union Carbide Eastern in Hong Kong. Substandard technology, storage of MIC in recklessly large quantities, irresponsible cost cutting leading to poor maintenance and neglect of safety including not passing on key warnings, were the key factors that led to the gas catastrophe which cost so many thousands their lives. For this Union Carbide Corporation bears direct responsibility and faces criminal charges which it must one day answer in court. Dow Chemical, well aware of Carbide’s situation when it bought the company, cannot walk away from this.

For more details on UCC’s direct role in the disaster see this bhopal.net article.

Eveready was, in fact, working on some remediation of the site when the state government of Madhya Pradesh revoked their lease in 1998 and took control of the site.

After the disaster, UCIL, directed by Union Carbide Corporation in the US (which tried to conceal its involvement), began assessing contamination at the site with the participation of state government authorities. Several internal studies, showing severe contamination, were not made available to the local public or government. Following the sale of UCIL stock in 1994, Carbide continued directing operations, assisted by its US trained manager, Hayaran, until at least 1995. Eveready Industries India Limited, the successor company, continued to avoid carrying out substantive cleanup work at the site. In July 1998 it suddenly relinquished the site lease to one department of the State Government while being supervised by another department on an extensive clean up programme.

The government of Madhya Pradesh has stated it will pursue both Dow Chemical as inheritor of Union Carbide Corporation and Eveready, inheritor of Union Carbide Indian Limited, as joint tortfeasors, to do the clean up. On June 28th, 2004, the Indian government wrote to the Southern District Court of New York, where the survivors’ lawsuit concerning contamination in Bhopal had been reinstated by the US appeals court. “Pursuant to the ‘polluter pays’ 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. The Union of India and the State Government of Madhya Pradesh shall not bear any financial burden for this purpose.”

Per your comment on Polluter Pays, any efforts by activists to apply the “polluter pays” principle to Dow are, again, misdirected. If the court responsible for directing clean-up efforts ultimately applies the “polluter pays” principle, it would seem that legal responsibility would fall to Union Carbide India Limited, which leased the land, operated the site and was a separate, publicly traded Indian company when the Bhopal tragedy occurred. In 1994, Union Carbide sold its interest in Union Carbide India Limited with the approval of the Indian Supreme Court. The company was renamed Eveready Industries India Limited and remains a viable company today.

Under “polluter pays” laws applicable in India as in the United States, Union Carbide Corporation, as the majority shareholder and controlling partner in Union Carbide India Limited is liable to clean up the contamination it caused. Dow Chemical acquired 100% of Union Carbide in full knowledge of the Bhopal contamination. A Greenpeace report detailing the nature and extent of the problem was published in 1999, two years before the Dow-Carbide merger.

When Dow acquired Union Carbide, it acquired Carbide’s liabilities along with its assets. It could not be otherwise, and this is confirmed by the fact that Dow set aside $2.2 billion to cover the asbestos liabilities it had inherited from Union Carbide in the US It can hardly argue that it did not also inherit Union Carbide’s liability to clean up the mess it had created in Bhopal.

The Dow Chemical Company has never had any presence in Bhopal nor does the company have responsibility for any liability relating to Bhopal.

Again, the Dow Chemical Company has never had any presence in Bhopal nor does the company have responsibility for any liability relating to Bhopal. Dow’s responsibility, along with that of the rest of the industry, is to make sure something like this never happens again and to continue to drive industry performance improvements.”

Second and third appearance of Dow’s favourite line. Dow has both responsibility and liability: the responsibility to produce its absconding subsidiary Union Carbide in court to face criminal charges, and the inherited liability for the water contamination which, even as this callous game of smoke and mirrors goes on, is killing and deforming children in Bhopal.

By refusing to accept responsibility for the clean up Dow is allowing 30,000 people affected by the water to continue being poisoned, and by obstructing the course of justice Dow by refusing to produce Union Carbide Corporation in court, it is denying any chance of justice and redress to the half million afflicted by the gas disaster.

 

Share this: