Dow claims that it has no liability for the Bhopal disaster. Not
to put too fine a point on it, but they’re liars.
Key Outstanding Liabilities
Two court cases are pending: one civil, heard
in the Southern District federal court in New York; the other criminal,
heard before the Chief Judicial Magistrate’s court in Bhopal.
Anderson's Bail Bond
The civil case - which is unrelated to
the disaster itself - was filed in United States federal court in
1999 by Bhopal residents against Union Carbide. When it fled India
after Bhopal, Carbide left tons of chemical wastes behind, and these
have poisoned the groundwater and thousands of Bhopal residents.
The civil case seeks a comprehensive cleanup of the contaminated
site and the properties around the factory, and compensation and
medical monitoring for those poisoned by Carbide’s chemical
waste. The lawsuit, Bano
v. Union Carbide, has survived four motions to dismiss,
and has been reinstated twice by the 2nd Circuit Court of Appeals.
The case is currently in the discovery process, and will soon proceed
The criminal case - which is related to
the 1984 Bhopal disaster – was originally filed in 1987, and
reinstated in 1991. Both Warren Anderson, the former CEO of Union
Carbide, and the Union Carbide Corporation itself face
criminal charges in India of “culpable homicide” (or
manslaughter). Both Anderson and Carbide have repeatedly ignored
summons to appear in India for trial,
and are officially considered “absconders” (fugitives
from justice) by the Indian Government. While Anderson, if extradited
and convicted, would face ten years in prison, Carbide faces a fine
which has no upper limit.
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In March 1985, through the Bhopal Gas Leak Disaster (Processing
of Claims) Act, the Indian Government arrogated to itself the sole
powers to represent the victims in the civil litigation against
Union Carbide. It then filed a $3 billion compensation suit on behalf
of the victims in US federal court, but the case was sent to Indian
courts in May 1986 on grounds of forum non-convenience,
under the condition that Union Carbide would submit to the jurisdiction
of Indian courts.
Carbide’s lawyers devised a plan to delay all legal proceedings
in order to squeeze the Indian government into accepting a low settlement.
It contested the legitimacy of courts it had asked to be tried before.
It pleaded to have ‘illiterate’ victims’ claims
denied. It threatened to summon every individual survivor and appeal
all Indian decisions in US courts. It denied it was a multinational.
It claimed the gas was not ultra-hazardous. It blamed an unnamed
saboteur. It appealed court orders for humanitarian relief,
while professing its concern for the victims. Their first settlement
offer was a paltry $100 million dollars, less than half the company’s
liability insurance cover. By 1989, Carbide had spent at least $50
million on legal fees alone. How much they spent on PR companies
such as Burson Marsteller, who they hired from Dec. 20 1984, has
not been disclosed.
It wasn’t until 1989 that a settlement was reached between
Carbide and the Indian Government – one made without the consultation
or consent of the survivors themselves. The victims were awarded
an average of $500 in compensation (a total of $470 million), falling
far below international compensation standards and the standards
set by Indian Railways for accidents. In exchange, Carbide was to
be absolved of all civil liabilities; criminal cases against the
company and its officials were to be extinguished; and the Indian
government was to defend the corporation in the event of future
Many survivors found the settlement insulting. Indeed it was. It
awarded them an average of 7 cents a day – the cost of a cup
of tea – for a lifetime of unimaginable suffering. At Union
Carbide, by contrast, “restructuring” - or asset stripping
- in the immediate aftermath of Bhopal landed its managers and major
shareholders huge windfalls in stock payments and golden parachutes.
It paid only $200 million (or 43 cents a share) of its own money
to settle the world’s largest peacetime massacre. In fact
its annual report described 1989, the year of the settlement, as
its ‘best financial year on record’.
After having waited five long years for compensation, the Bhopal
victims nevertheless filed suit to overturn the settlement in a
case that went all the way to the Indian Supreme Court. Citing inaccurate
statistics for the number of dead and injured victims, the court
ruled in 1991 that the settlement amount would stand, simultaneously
reinstating the criminal cases against Carbide, its CEO Warren Anderson,
and other officials.
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The Civil Case: Environmental
Keen to distance itself from the disaster, Union Carbide fled India
leaving behind tons
of toxic wastes strewn in and around the factory site. According
to former workers of the Union
Carbide factory in Bhopal, while the factory was in operation, 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
and organic poisons. In 1977, Carbide constructed Solar Evaporation
Ponds (SEPs) over 14 hectares 400 meters north of its factory. Toxic
effluents and toxic wastes were routinely dumped there. Two tube
wells dug in the vicinity of the SEPs were abandoned because of
the noxious smell and taste of the water.
A 1990 study by the Bhopal Group for Information and Action found
di- and trichlorobenzenes in water samples taken from wells being
used by communities living near the factory fence lines, and phthalates,
chlorinated benzenes and aromatic hydrocarbons in the soil samples
taken from the SEPs. In 1996, the State Research Laboratory conducted
its own tests on water and concluded that the chemical contamination
found is “due 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.”
A few of the contaminants found
in a typical glass of Bhopal drinking water.
In 1999, Greenpeace and Bhopal community groups documented
the presence of stockpiles of toxic pesticides (including Sevin
and hexachlorocyclohexane) as well as hazardous wastes and contaminated
material scattered throughout the factory site. The survey found
substantial and, in some locations, severe contamination of land
and water supplies with heavy metals and chlorinated chemicals.
Samples of groundwater from wells around the site showed high levels
of chlorinated chemicals including chloroform and carbon tetrachloride,
indicative of long-term contamination. Over the years, the groundwater
supplying an estimated 20,000 Bhopal residents has become heavily
contaminated by Union Carbide’s toxic by-products.
Lead, nickel, copper, chromium, hexachlorocyclohexane and chlorobenzenes
were also found in soil samples. Mercury in some sediment samples
was found to be between 20,000 and 6 million times the expected
levels. According to a 2002
study by the Fact Finding Mission on Bhopal, many of Union Carbide’s
most dangerous toxins can now be found in the breast milk of mothers
living around the factory.
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Carbide's Engineering Department warned of danger of groundwater
contamination as early as 1972. The proposed design of the Solar
Evaporation Ponds risked "danger of polluting subsurface water
supplies in the Bhopal area". To avoid this "new ponds
will have to be constructed at one to two-year intervals throughout
the life of the project". They were not, of course. Union Carbide
documents reveal instead that the ponds were soon leaking. On 25
March 1982 a panicky telex was sent from India to Union Carbide
in Danbury. Some days later, the Phase II pond was still leaking,
causing great concern, and the emergency pond was also discovered
to be leaking.
documents obtained through discovery. More
A preliminary study of soil and groundwater pollution inside the
plant, conducted in 1989 by Carbide, found plenty to be worried
about. Some water samples produced a 100% death rate among fish
placed in them. Nevertheless Carbide issued no warning. An internal
memo refers to the need for secrecy, suggesting that the information
should be kept "for our own understanding". Not only did
it fail to warn people living nearby, it vociferously denied that
there was a problem and, incredibly, wrote
to the Gas Relief Minister criticizing those who were trying
to make people aware of the danger, suggesting that they were "mischievous"
agitators. Carbide in the US meanwhile tried to portray Bhopal activists
and their supporters as "communists"
who aimed "to restructure US society into something unrecognizable
and probably unworkable".
Carbide and Dow later relied on a report from a government organization
called NEERI which in 1997 published a report which found that water
outside the factory was not contaminated. Consultant Arthur D Little
had been appointed
in 1989 by Union Carbide US to work privately with NEERI. ADL believed
itself to be working with UCC in Danbury, but all reference to UCC
was to be deleted. ADL was to pretend to be working with UCIL alone.
But a memo of 1993 shows the US Carbide executives in the driving
seat. ADL eventually reported back to Carbide suggesting that NEERI
had failed to find contamination because its sampling methods were
particular ADL suggested it was imprudent to claim that local water
was safe for drinking and warned that groundwater contamination
could happen far more swiftly and seriously than envisaged. ADL
was unclear at one point as to whether NEERI was claiming that labourers
were or were not exposed to contaminated groundwater. ADL's
suggested changes ran to 17 pages, but none of them were incorporated
in NEERI's published report, which
is what Dow and Carbide still quote, 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.
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What Carbide knew and when it knew it, while damning, is largely
irrelevant. The polluter pays principle is the law in India, and
intent or knowledge of contamination is not a prerequisite for being
held accountable. In Indian law, 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. Ruling
in Vellore Citizens' Welfare Forum v. Union of India (1996)
5 SCC.647, the Indian Supreme Court declared that, “. . .Once
the activity carried on is hazardous or inherently dangerous, the
person carrying on such activity is liable to make good the loss
caused to any other person by his activity irrespective of the fact
whether he took reasonable care while carrying on his activity.
The rule is premised upon the very nature of the activity carried
on.” Elaborating on the polluter pays principle in MC
Mehta v. Union of India (1997) 2 SCC 353, the Supreme Court
ruled that polluter pays principle as interpreted by the Court means
that “the absolute liability for harm to the environment extends
not only to compensate the victims of pollution but also of restoring
the environment degradation.”
In a June 28, 2004 official letter, the Indian Government has gone
so far as to stress
that the polluter pays principle applies in this specific case:
"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 letter was issued in support
of Bano v. Union Carbide.
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Bano v. Union Carbide - which is unrelated to the disaster
itself - was filed in United States federal court in 1999 by Bhopal
residents against Union Carbide. When it fled India after Bhopal,
Carbide left tons of chemical wastes behind, and these have poisoned
the groundwater and thousands of Bhopal residents. The civil case
seeks a comprehensive cleanup of the contaminated site and the properties
around the factory, and compensation and medical monitoring for
those poisoned by Carbide’s chemical waste. The lawsuit has
survived four motions to dismiss, and has been reinstated twice
by the 2nd Circuit Court of Appeals. The case is currently in the
discovery process, and will soon proceed to trial.
Interestingly, many of the internal Union Carbide documents which
reveal the extent of Carbide’s negligence, culpability and
naked greed in Bhopal have become public as a result of this lawsuit.
In this interview, Raj Sharma, the lead attorney for the Bhopal
victims in this case, describes
their significance. Many of the key judgments in the case are
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Chemical has argued that the 1989 Bhopal settlement resolved
all liabilities. Obviously this is not the case, as Bano v.
Union Carbide has survived four motions to dismiss since it
was filed in 1999. In fact,
the settlement dealt solely with disaster-related damages sustained
by Bhopal residents, not the environmental liabilities and pollution
associated with the routine operation of the factory. On March 17,
2004 the Second Circuit Court of Appeals resoundingly
refuted Dow’s PR/BS by sanctioning further property damage,
environmental remediation, and personal injury claims against Union
Carbide, while in a June 28, 2004 official letter, the Indian Government
the court to hold Carbide liable for environmental remediation
at the site.
Dow has also sought to elude responsibility for a cleanup by shifting
the blame. Although the site has always been owned by the State
Government of Madhya Pradesh, it was leased by Carbide for its pesticide
factory. Carbide returned this lease to the State Government in
1998, but without fulfilling one of its key provisions: that the
site be returned in a pristine state. Carbide itself acknowledges
this was a condition for the lease in this
Although polluter pays is the law in India, Dow
has argued that the current owner of the land, the Madhya Pradesh
government, is responsible for the cleanup. Dow
has also argued that the $300 million accrued through interest
on Union Carbide’s original 1989 settlement - which the Indian
Supreme Court ruled in July
2004 exists solely to compensate the Bhopal victims for the
loss of their health, their livelihoods, and their loved ones -
should be used to pay for a cleanup, turning the polluter pays principle
entirely on its head. In summary, 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.
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Chronology of the Case
Nov. 15, 1999 - Class
action complaint is filed
Nov. 18, 1999 - Effective service of process on
Carbide is accomplished at their Danbury offices.
Nov. 21, 1999 - Process servers inform plaintiffs'
counsel at GLRS that Anderson's Long Island address is a vacant
Nov. 25, 1999 - Process servers inform plaintiffs'
counsel at GLRS that service on the New York condo is not effective
service since its only a mailing address.
March 8, 2000 - Mr. Krohley indicates to GLRS that
they would, now, be willing to accept
service on behalf of Warren Anderson and tried to suggest that
he had not been evading service but has had "some heart trouble"
August 28, 2000 - Mr. John F. Keenan dismissed
the class action suit mainly on the ground that the Bhopal Act
[Bhopal Gas Leak Disaster (Processing of Claims) Act, 1985] prevented
individuals or organizations outside the Government of India from
bringing an action against Union Carbide or its official.
October 2000 - Appeal
against Judge Keenan's decision filed before the Second Circuit
Court of Appeal of the US Federal Court. Futile requests to the
Indian government, over several months, to file an amicus curae
before the Court of Appeal to clarify the role and scope of the
Bhopal Act in support of the appeal.
November 15, 2001 - The Second Circuit Court of
affirmed and part dismissed the decision of Judge Keenan's court.
Claims under seven counts regarding contamination of ground water
and soil in and
around the factory and consequent health damages are directed to
Keenan for re-consideration. Plaintiffs file motion to discovery.
April, 2002 - In the ongoing discovery proceedings
before Judge Keenan Union Carbide submitted over 4000 pages of company
June 2002 - In response to a petition moved under
Rule 56 [f] by plaintiff's attorney on June 20, 2002 Judge Keenan
has directed Union Carbide to provide additional documentation related
to the case. Union Carbide obeyed this order.
September 20, 2002 - Plaintiffs and their attorney
Mr. Raj Sharma filed affidavits on the basis of about 100
"smoking gun" documents before Keenan.
March 18, 2003 - John F. Keenan again
dismisses the suit, this time because "Plaintiffs' claims
are untimely and directed at improper parties. Union Carbide has
met its obligations to clean up the contamination in and near the
Bhopal plant. Having sold their shares long ago and having no connection
to or authority over the plant, they cannot be held responsible
at this time."
April, 2003 - Appeal
against Judge Keenan's decision filed before the Second Circuit
Court of Appeal of the US Federal Court. Plaintiffs call Keenan's
decision a “glaring
instance of juridical prejudice”.
October 17, 2003 - Leading Congressman Frank Pallone
and eight other US lawmakers file
an amicus brief with the Court of Appeals, asserting, "It
is unacceptable to allow an American company not only the opportunity
to exploit international borders and legal jurisdictions but also
the ability to evade civil and criminal liability for environmental
pollution and abuses committed overseas."
October 31, 2003 - Second Circuit Court of Appeals
hears oral arguments.
March 17, 2004 - the Second Circuit in part
reverses Keenan's dismissal. The Court holds that Union Carbide
could be ordered to clean up individual victims’ property,
and could also be ordered to clean up the plant site itself, if
the Indian authorities, which own the land on which the plant sits,
were to intervene and request such a clean-up. The appeal decision
also allows for certain personal injury claims within the statute
of limitations period; property claims for monetary damages; and
claims for medical monitoring by plaintiffs.
June 18, 2004 - Three Bhopal activists, including
award winner of 2004 Ms Rasheeda Bi, begin an indefinite hunger
strike without water in order to force the government of India to
issue a 'no objection' certificate regarding the clean up and decontamination
of the UCIL plant site. This NOC was needed in the NY district court
by June 30th, 2004.
June 23, 2004 - Six days later, the Government of
India finally bows to pressure and agrees to submit a statement
to the New York District Court. This
letter is sent on June 28th.
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Selected Press Coverage
November 1999 - Reuters article
on the filing of the suit
December 2000 - overview
of the Bhopal legal history, including remarks by H R Sharma
December 2001 - Frontline magazine article on the
ramifications of the Second Circuit Court of Appeal's November decision
December 2001 - opinion
in The Hindu on the Second Circuit Court of Appeal decision
December 2002 - the New Scientist reports on new
evidence raised by the discovery documents. The piece provoked
from Carbide's lawyers, and a counter-response
from the ICJB.
December 2002 - Frontline article on the
implications of the Carbide documents discovered in the case
December 2002 - interview
with H R Sharma in Frontline
March 2003 - the Tribune
looks critically at the role of Indian officials in Judge Keenan's
March 2003 - coverage of the
survivors' intent to appeal Judge Keenan's decision
November 2003 - in depth coverage in Frontline of
October amicus brief filed by US Congresspersons
April 2004 - Frontline coverage of the March US
appeals court decision
April 2004 - Interview
with Rajan H Sharma on the implications of the appeal decision
June 2004 - an article in The Hindu examines
the Indian government's role in the June hunger strike
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The Criminal Case: Criminal
Bhopal is not only a disaster, but a corporate crime. It began as
a classic instance of corporate double-standards: Union Carbide
was obliged to install state-of-the-art technology in Bhopal, but
instead used inferior
and unproven technology and employed lax
operating procedures and maintenance and safety standards compared
to those used in its US 'sister-plant'. The motive was not simply
profit, but also control: the company saved $8 million, and through
this deliberate under-investment managed to retain a majority share
of its Indian subsidiary. (1) On THAT
NIGHT, none of the plant’s safety systems - six in
all - were operational, and the plant siren had been turned off.
NONE of the safety systems designed to prevent
a leak - six in all - were operational on THAT
1. Flare Tower (disconnected)
2. Vent Gas Scrubber (out of caustic
soda and inadequate for unsafe volume of gas)
3. Water Curtain (not functional;
designed with inadequate height)
4. Pressure Valve (leaking)
5. Run Off Tank (already contained
6. Mandatory Refrigeration for MIC Unit
(turned off to save money)
The Indian subsidiary UCIL was majority owned by the US corporation
and even relatively minor decisions could not be made without reference
to the US. Carbide provided all process designs in Bhopal, which
included flow diagrams, material and energy balances, operating
manuals and other information necessary for the erection and start
up and operation of the plant. It couldn't be any other way: no
India-based firm had any experience of MIC/Sevin production whatsoever.
This technology exchange from the US to India was formalised in
a technical services agreement and UCIL paid for continual know-how
and safety audits. Internal Carbide documents also reveal that UCC
set up a "design review process", meaning continual review
of design by US engineers.
Carbide had ample warning that a disaster was imminent. On December
25, 1981, a leak of phosgene killed one worker, Ashraf Khan, at
the plant and severely injured two others. On January 9, 1982, twenty
five workers were hospitalized as a result of another leak at the
plant. During the "safety week" proposed by management
to address worker grievances about the Bhopal facility, repeated
incidents of such toxic leakage took place and workers took the
opportunity to complain directly to the American management officials
present. In the wake of these incidents, workers at the plant demanded
hazardous duty pay scales commensurate with the fact that they were
required to handle hazardous substances. These requests were denied.
Yet another leak on October 5, 1982 affected hundreds of nearby
residents requiring hospitalization of large numbers of people residing
in the communities surrounding the plant. Opposition legislators
raised the issue in the State Assembly and the clamor surrounding
these incidents culminated in a 1983 motion that urged the state
government to force the company to relocate the plant to a less-populated
area. Starting in 1982, a local journalist named Rajkumar Keswani
had frantically attempted to warn of the dangers posed by the facility.
In September of 1982, he wrote an article entitled "Please
Save this City." Other articles, written later, bore grimly
prophetic titles such as "Bhopal
Sitting on Top of a Volcano" and "If You Do Not Understand
This You Will Be Wiped Out." Just five months before the tragedy,
he wrote his final article: "Bhopal on the Brink of a Disaster."
In May 1982, Union Carbide sent a team of U.S. experts to inspect
the Bhopal plant as part of its periodic safety audits. This report,
which was forwarded to Union Carbide's management in the United
States, speaks unequivocally of a "potential for the release
of toxic materials" and a consequent "runaway reaction"
due to "equipment failure, operating problems, or maintenance
problems." In fact, the report goes on to state rather specifically:
"Deficiencies in safety valve and instrument maintenance programs....
Filter cleaning operations are performed without slipblinding process.
Leaking valves could create serious exposure during this process."
In its report, the safety audit team noted a total of 61 hazards,
30 of them major and 11 in the dangerous phosgene/MIC units. It
had warned of a “higher potential for a serious incident or
more serious consequences if an accident should occur.” Though
the report was available to senior U.S. officials of the company,
nothing was done. (2) In fact, according
to Carbide's internal documents, a major cost-cutting effort (including
a reduction of 335 men) was undertaken in 1983, saving the company
$1.25 million that year.
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by Carbide's PR/BS?
Learn the TRUTH behind Carbide's lies. Visit
Immediately after the disaster, Union Carbide launched an aggressive
effort to obscure the cause, paying for the only study ever to conclude
that sabotage was responsible. Although this study has never been
entered into evidence in a court of law – its scientific value
is dubious – Dow and Carbide cite it shamelessly as they flee
any responsibility for Bhopal.
Every investigation and analysis not paid for by Carbide concluded
causes other than sabotage. The process safety system trumpeted
by Carbide included a design modification installed in May 1984
on the say-so of US engineers. This ‘jumper line’, a
cheap solution to a maintenance problem, connected a relief valve
header to a pressure vent header and enabled water from a routine
washing operation to pass between the two, on through a pressure
valve, and into MIC storage tank 610. Carbide’s initial investigation
agreed that the pressure valve was leaking but declined to mention
the jumper line.
Carbide itself has cast doubt on the sabotage theory. In Congressional
testimony on March 26, 1985, Union Carbide’s
CEO Warren Anderson stated that there was “no evidence whatsoever
that sabotage was behind the incident at Bhopal.” (3)
Mr. Anderson was also quoted at a March, 1985 press briefing as
saying that sabotage is “always a potential and you have to
worry about it. That’s why you need the redundancy…
Built into the safety system are a whole series of capabilities
that can take care of whatever inadvertent action or commission
has taken place so you’re not all dependent on just one item
to either make it safe or make it unsafe.” (4)
Finally, Jackson Browning, Union Carbide’s Vice President
for Health, Safety and Environmental Affairs, was quoted as testifying
before a Congressional committee that "the MIC tank line fittings
are colored-coded and that the water line couplings are incompatible
with the gas line couplings that go into the tank" - therefore
making a deliberate introduction of water into the MIC tank, as
Union Carbide has claimed, virtually impossible. (5)
Most damningly of all, although Carbide claims it is certain of
the identity of the saboteur “responsible” for the death
of 22,000 people, they’ve never publicly revealed his
identity. In fact, they’ve
been particularly careful to avoid doing so because it would invite
a libel suit in which the theory and the facts of the disaster would
be open to scrutiny.
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The Case Against Carbide
In the wake of the disaster, Carbide’s CEO Warren Anderson,
other top executives, and the corporation itself were charged by
the Central Bureau of Investigation (the equivalent of the American
FBI) with “culpable homicide” (or manslaughter). (6)
Despite assurances from Union Carbide representatives that the corporation
would face trial in India as and when the justice system required,
it has failed to do so. Carbide has ignored several summons to appear
for trial, including one published in the Washington Post
(February 21st, 1992). The Union Carbide Corporation is now officially
considered an “absconder” (fugitive from justice) by
the Indian Government.
If found guilty in criminal proceedings, Union Carbide could be
sentenced to a fine which has no upper limit. Such penalties are
decided based upon 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-Carbide is the world's largest chemical
corporation) and the current state of the victims.
Dow Chemical, Carbide’s new owner, has
stated publicly that it has no intention of surrendering its
subsidiary for trial. In December 2003, Dow’s spokesperson
was quoted as saying that “their position on the matter is
that the Indian government has no jurisdiction over [them]; therefore,
they are not appearing in court.”
By refusing to surrender its subsidiary for trial, Dow has placed
itself in the legal position of harboring a fugitive. And while
Union Carbide no longer has assets in India (which could be seized
to compel its appearance for trial), Dow has at least four major
subsidiaries in the country. In January 2005, the Chief Judicial
Magistrate’s court in Bhopal sent
a summons to Dow’s US headquarters, asking it to show
cause to the court why Dow’s Indian assets shouldn’t
be seized to compel Carbide’s appearance for trial.
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The Case Against Warren Anderson
Warren Anderson, Carbide’s CEO from 1982-1986, exercised managerial
control and supervision over the operations of Union Carbide India
Limited through a single executive intermediary. The Bhopal plant
was directly under the managerial control and supervision of the
Director of Union Carbide's Agricultural Products Corporation who,
in turn, was an Executive Vice-President of Union Carbide and answered
directly to Warren Anderson.
As both Chairman of the Board and Chief Executive Officer, Anderson
was directly involved, approved and ratified the double standards
in design, safety and operations by which Union Carbide imposed
at UCIL inferior and inherently dangerous conditions compared with
those it chose to establish at its Institute, West Virginia factory.
Anderson was personally aware of and involved in the economy drive
of Union Carbide's "Bhopal Task Force" to salvage the
plant's financial viability. (7)
1982 May: Union Carbide inspection
team indicated that the plant at Bhopal, India was unsafe. The report
of the Tyson safety audit team This report, which was forwarded
to Union Carbide's management in the United States, speaks unequivocally
of a "potential for the release of toxic materials" and
a consequent "runaway reaction" due to "equipment
failure, operating problems, or maintenance problems." The
safety audit team also noted a total of 61 hazards, at least 30
of which were major and 11 of which were specifically identified
as hazards in the MIC/ phosgene units.
1984 September: An internal
Union Carbide memo warned of a "runaway reaction that could
cause a catastrophic failure of the storage tanks holding the poisonous
[MIC] gas" at the Institute, West Virginia plant. The memo
was released in January 1985 by U.S. Representative Henry Waxman
(D-CA), Chairman of the House Health and the Environment Subcommittee.
off the golf links
There is prima facie evidence that Anderson knew or should have
known about safety conditions in the Bhopal plant and failed to
take remedial action before the disaster occurred. Carbide policy
states that the CEO is to be notified whenever a serious personal
injury or fatality to a Carbide worker occurs. Anderson was informed
or should have known about Ashraf Khan’s 1982 death at the
Bhopal plant from a gas leak; the response was to send the above-mentioned
safety audit team to Bhopal, once again with the knowledge of the
CEO. The Tyson report was sent to the CEO's office for remedial
action, which was not taken.
In the wake of the disaster, Anderson flew to Bhopal as a PR stunt.
There he was placed under house arrest and charged by the Indian
authorities with "culpable homicide" (manslaughter). Although
Anderson was later released on bond and allowed to leave the country,
he promised to return to face any criminal proceedings. He did not.
After Anderson ignored multiple summons to appear for trial, including
one published in the Washington Post (January 1st, 1992),
the Indian Government issued an arrest warrant, circulated through
Interpol. Anderson then went into hiding.
In 2002, Anderson was discovered living
a life of luxury in the Hamptons, an exclusive beach resort
not far from New York. In May of 2003, the Indian Government requested
his extradition, but the request was
rejected in July of 2004 by the US Government. India plans to
re-submit the request; Anderson is still considered an “absconder”
(fugitive from justice) by the Indian Government. If extradited
and convicted of the deaths of 20,000 Bhopalis, Anderson faces ten
years in prison.
|Warren Martin Anderson
Born 29th November 1921.
6'2" 210 pounds. Colour of hair - White
Majored in Chemistry in 1942 from Colgate. Joined Navy, discharged
in 1945. Studied law.
Wife Lillian Anderson, former school teacher, no children.
Joined Union Carbide Corporation in 1945 as salesman and became
its President in 1979 and Chairman in 1982. Retired in 1986.
Chronology of the Case
December 3, 1984 - First Information Report (FIR)
on the disaster filed at Hanumangunj police station, Bhopal.
December 7, 1984 - Anderson along with Indian officials
arrested in Bhopal and released on bail; Anderson escorted to New
Delhi on a special government aircraft and allowed to leave the
December 1, 1987 - Central Bureau of Investigation
(CBI) files charge sheet against Warren Anderson, chairman of UCC,
and eleven other accused including UCC (USA), Union Carbide (Eastern)
Hong Kong, and UCIL. Anderson is charged under Indian Penal Code
sections 304 [culpable homicide, punishable by 10 years to life
imprisonment and fine], 320 [causing geievous hurt punishable by
10 years to life imprisonment and fine], 324 [causing hurt, punishable
by 3 years imprisonment and/or fine] and 429 [causing death and
poisoning of animals, punishable by 3 years imprisonment and/or
September 24, 1988 - One of several summons served
on Anderson through Interpol.
November 2, 1988 - Erle Slack, spokesman at Union
Carbide, Danbury says "Indian courts have no jurisdiction over
Mr. Anderson or the company."
February 9, 1989 - CJM, Bhopal, proclaims Anderson
an absconder for repeatedly ignoring summons and directs him to
be present in Court on March 31, 1989.
February 14-15, 1989 - While the matter relating
to payment of interim compensation was being heard before the Supreme
Court of India, UCC and the Government of India (GOI) reached a
settlement. The settlement stipulated inter alia that UCC would
pay US $470 million as compensation and the GOI would withdraw the
criminal cases instituted against the accused in the Bhopal gas
leak disaster case. There was much public protest against the unjust
settlement followed by filing of a number of review and writ petitions
against the settlement in the Supreme Court by survivors organizations
and solidarity groups.
October 3, 1991 - Supreme Court of India revoked
criminal immunity granted to Anderson and all other accused in the
Bhopal gas leak disaster case in response to review and writ petitions.
Union Carbide describes the Supreme Court of India's final order
on lifting criminal immunity as "unfortunate".
November 11, 1991 - Criminal cases against all the
accused including Warren Anderson revived in the Chief Judicial
Magistrate (CJM)'s Court at Bhopal.
December 7, 1991 - Proclamation issued by CJM, Bhopal
ordering Warren Anderson - accused No.1; UCC (USA) - accused No.10;
and UCE (Hong Kong) - accused No.11; to present themselves before
the CJM on February 1, 1992.
January 1, 1992 - Proclamation for Anderson's appearance
in the Court of the CJM, Bhopal published in the Washington
February 1, 1992 - The CJM declares Anderson, UCC
(USA) and Union Carbide Eastern (Hong Kong) as absconders for non-appearance
in the criminal case. The CJM orders attachment of Anderson's property.
April 10, 1992 - CJM, Bhopal issues non-bailable
warrant of arrest against Warren Anderson and orders the Government
of India to seek extradition of Anderson from the United States.
April 19, 1992 - Opposition parties question government
in the Parliament on initiation of extradition proceedings against
September 29, 1992 - CJM Anil Chaturvedi directs
CBI to expedite extradition proceedings against Warren Anderson.
December 8, 1993 - Minister of State for Chemicals
and Fertilizers, Mr. Eduardo Faleiro tells the Indian Parliament
"CBI has prepared documents along with affidavits for the extradition
of Mr. Warren Anderson, former UCC Chairman, in connection with
the Bhopal gas disaster."
November 19, 1996 - CBI for the first time filed
a statement before the CJM, Bhopal on the steps taken in the matter
of extradition of Warren Anderson stating that the matter of extradition
was being re-examined in the light of the Supreme Court judgment
August, 2002 – Anderson found living
a life of luxury in the Hamptons, an exclusive beach resort
not far from New York.
May, 2003 – The Government of India formally
requests Anderson’s extradition from the US Government.
July, 2004 – Anderson’s extradition
rejected by the US Government.
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"If you define 'liability' simply as the ability to lie,
than Dow's in liability up to its ears."
Like any self-respecting criminal, Dow has prepared its story -
neatly fashioned into small soundbites.
In November 2000, Dow’s newly elected President and CEO Michael
Parker, in his first media briefing, said: “Clearly, we’re
enormously aware of Bhopal and the fact that particular incident
is associated with Union Carbide,
[but Union Carbide has] done what it needs to do to pursue the correct
environment, health, and safety programs.” (8)
Putting things more bluntly, Kathy Hunt, Dow’s Public Affairs
specialist, said in July of 2002 that “$500 is plenty good
for an Indian.”
- top -
Lie #1: No Liability
Both were referring to a 1989 settlement between Union Carbide and
the Indian Government for $470 million. Dow furiously asserts the
settlement resolved all liabilities. "There was a 1989 settlement
that resolved all civil, criminal charges," Dow’s CEO,
William Stravropoulos, lied from the floor of Dow's 2004 Shareholder
Meeting. "The Supreme Court of India upheld this and said it
was fair, just, and equitable." A statement
posted on the Dow website echoes his comments: before acquiring
Union Carbide, Dow "conducted an exhaustive assessment to ensure
there was absolutely no outstanding liability in relation to Bhopal,"
the statement reads. "There was none; the company Dow acquired
retained absolutely no responsibility for either the tragedy or
for the Bhopal site." "There is no legal foundation for
application of liability," John Musser, Dow's spokesman, is
as saying. "Union Carbide resolved their liability in regards
to the Bhopal tragedy," he
said, "so when we purchased their shares, there was no
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Lie #2: The Liability is Carbide’s, not Dow’s
Although Dow accepted Union Carbide's asbestos liabilities, setting
aside fully $2.2 billion to resolve all claims, (9)
Dow continues to maintain, contrary to US,
Indian, and International Corporate Law, that it acquired the
assets of Union Carbide without its liabilities. "Union Carbide
remains as a subsidiary of Dow, with its own board of directors,
and its own assets and liabilities," John Musser was
quoted as saying. "Stock ownership does not equal responsibility
for those who acquired the stock. ... For example, if you own stock
in Ford, and someone rolls over in a Ford and sues Ford, you cannot
be sued because you hold stock in Ford, regardless of whether or
not negligence occurred." However, Carbide now operates as
a supplier to Dow’s businesses alone and retains a boardroom
constituted of Dow managers and executives. Carbide’s headquarters
in Danbury, Connecticut have been sold to the pharmaceutical giant
Boehringer. Within Dow’s official regulatory filings, Carbide’s
business activities are said to “comprise components of Dow’s
global businesses rather than stand-alone operations.” Essentially,
Carbide is Dow is Carbide.
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Lie #3: No Jurisdiction
So what if there is criminal liability? Dow won’t send Carbide
to stand trial anyway. "Union Carbide and Mr. (Warren) Anderson,
the former CEO, are named in [the criminal lawsuit]. They have not
come forward. Their position on the matter is that the Indian government
has no jurisdiction over Union Carbide or Mr. Anderson; therefore,
they are not appearing in court," Musser bluntly
Lie #4: It's the Government's problem
On its propaganda website, bhopal.com, Dow claims
that "In 1998, the state government of Madhya Pradesh revoked
Eveready Industries's lease on and took possession of the facility
and publicly assumed all accountability for the site, including
the completion of any further remediation."
The District Industries Center
letter "revoking" UCC's lease
That’s a rather twisted interpretation of events. The fact
is that Eveready Industries India Limited’s “escape”
from the site remains unrecognized by the MP Government, and was
precipitated by a bureaucratic error. In 1998, EIIL were in the
middle of a remediation programme, supervised by the Madhya Pradesh
Pollution Control Board (MPPCB). Without communicating its intentions
to the MPPCB, the District Industries Centre gave EIIL 10 days to
return the lease, citing the fact that they weren’t using
the site for industrial purposes any longer. At best the notice
was in error, at worst the product of illicit bribery. But EIIL
was quick to drop their tools and leave, and when the MPPCB demanded
they come back and clean up they refused.
There's a telling chronology to the aftermath of this saga this
that taken together makes a mockery of Dow's assertion of governmental
assumption of responsibility:
July 28, 1998: the MP govt issued a statement that, "The State
govt will ENSURE safe disposal of the residual Sevin Tar and Napthol
Tar from the factory. This will be done in consultation with the
NEERI-Nagpur and IICT-Hyderabad." (emphasis added)
It is to this statement that Dow perpetually alludes but never
actually produces as evidence. The State government isn't saying
it will undertake the work itself, just that it will make sure it's
done, and with proper professional scrutiny. The work only mentioned
only entails surface wastes and does not encompass a comprehensive
remediation programme. EIIL itself had paid for the consultation
of NEERI and the IICT at the behest of the MPPCB.
Feb 1999: The MPPCB, who have been consistent in requiring EIIL/UCIL
to remediate the site, write to the site manager CK Hayaran demanding
that the work be done as per Management and Waste Handling Rules,
1989, and citing in so many words the polluter pays principle.
Oct 19, 2002: The MP govt. announces it will approach the Supreme
Court and Centre govt. in order to hold Dow accountable for remediation.
February 5, 2003: The MP govt. advises the Central Pollution Control
Board to recover costs of clean up from Dow and Eveready Industries
India ltd (EIIL). The MP govt. argues that EIIL is still the occupier
of the factory site and owner of its contents because of the absence
of a formal hand over to the District Industries Center.
June 7, 2004: The MP govt. submits a formal
letter to the Indian Government in response to a NY court case
(Bano v Union Carbide) in which it states that the policy of the
government regarding remediation is that “The State Government
shall not bear any financial burden for this purpose. The disposal
of the chemical waste shall be at the cost of Union Carbide.”
June 28, 2004: The Central Government of India submits a formal
notice before the Southern District Court of New York (the venue
for Bano) in which it states as its official policy that "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."
July 15, 2005: counsel for the Union govt., acting in the MP High
Court PIL, seeks a court directive to UCC, Dow and EIIL that they
100 crores (about $22 million) for site remediation costs.
- top -
The Dow banner hangs from the New
York Stock Exchange
Shareholders Not Buying It
None less than Forbes Magazine has called Dow’s purchase
of Carbide “a mistake” because of Bhopal’s lingering
liabilities. (11) During the administration
of the merger, as part of their official filings to the Securities
and Exchange Commission in the US, Dow and Union Carbide officials
stated: “there are no…criminal…actions, suits,
claims, hearings, investigations or proceedings pending…No
investigation or review by any Government Entity with respect to
it or any of the subsidiaries is pending.” This incredible
statement outraged many of the company's shareholders, several of
suit in 2001 to stop the merger. Other shareholders, led by
Boston Common Asset
Management but including the Church of the Brethren Benefit
Trust, the Sisters of Mercy Reg. Community of Detroit Charitable
Trust, and the Sisters of the Holy Cross of Notre Dame, Indiana,
a shareholder's resolution with Dow in 2004, asking Dow for
full disclosure of the impacts the Bhopal matter may pose to the
company, its reputation, its finances, and its expansion in Asia.
The resolution closely followed the release of an April, 2004 report
by Innovest Strategic Value
Advisors entitled Dow
Chemical: Risks for Investors, which stated that Dow faces "significant
unreported, or underreported environmental risks." The report
details Dow's failure to disclose liabilities relating to Bhopal,
Agent Orange, Dursban, and dioxin in its SEC filings and statements
to shareholders. The disclosures of this report and Dow's continued
misrepresentations on its website and at its 2004 Shareholder's
Meeting prompted a coalition of Dow shareholders, including Boston
Common and Trillium Asset
Management, to file an August, 2004 letter
with the SEC, alleging material misstatements and asking the
SEC to investigate. “These statements and omissions raise
an array of concerns regarding the company’s compliance with
SEC rules and guidelines as well as with the Sarbanes Oxley Act,”
Sanford Lewis, the attorney representing Boston Common and Trillium,
"Investors need honest projections of potential liability,
not comments filtered through rose-colored lenses," said Shelley
Alpern of Trillium Asset Management.
- top -
Read an interview
with Raj Sharma, the attorney for the Bhopal victims in their
New York civil lawsuit, as he describes the significance of Carbide's
internal documents. For more about Dow's unreported liabilities,
please see Dow
Chemical: Risks for Investors, a report by Innovest Stategic
Value Advisors. A legal chronology is available
(1) According to Union Carbide’s own documentation,
obtained through discovery in the New York civil suit. Much of this
documentation is available online, at http://www.bhopal.net/poisonpapers.html.
See also New Scientist Magazine. “Fresh evidence
on Bhopal disaster.” December 2, 2002. Available at: http://www.newscientist.com/news/news.jsp?id=ns99993140.
And: The Financial Express. “Global Funds Tell Union
Carbide To Settle Bhopal Gas Leak Claims.” Ajay Jain, December
5, 2002. Available at: http://www.financialexpress.com/fe_full_story.php?content_id=23259.
(2) See The New York Times. “Union
Carbide Had Been Told of Leak Danger.” Philip Shabecoff, January
25, 1985. See also The New York Times. “1982 Report
Cited Safety Problems at Plant in India.” Thomas J. Lueck,
December 11, 1984. Also: The Christian Science Monitor.
“Confidential Indian report blames both US firm and subsidiary
for Bhopal disaster.” Mary Anne Weaver, March 26, 1985. And:
Time Magazine. “Clouds of Uncertainty; For Bhopal
and Union Carbide, the tragedy continues.” Pico Iyer, December
(3) See The New York Times.“Discrepancies
are Seen in Bhopal Court Papers.” Stuart Diamond, January
(4) See Section 65 of the Amended Class Action Complaint
before the Southern District Court of New York, the full text of
which is available at: http://www.bhopal.net/oldsite/amendedplaint.html.
(5) Quoted in Chemical and Engineering News,
April 8th, 1985. See also The New York Times. “Bhopal
Seethes, Pained and Poor 18 Years Later.” Amy Waldman, September
21, 2002. And: New Scientist Magazine. “Fresh evidence
on Bhopal disaster.” December 2, 2002. Available at: http://www.newscientist.com/news/news.jsp?id=ns99993140.
(6) Anderson and Union Carbide both stand accused
of culpable homicide (manslaughter), grievous assault, poisoning
and killing of animals and other offenses. See The Washington
Post. “India Seeks to Reduce Charge Facing Ex-Union Carbide
Boss.” Rama Lakshmi, July 8, 2002. See also the BBC.
“India to Extradite Bhopal Boss.” September 6, 2002.
Available at: http://news.bbc.co.uk/2/hi/business/2240895.stm.
(7) Clemens Work, "Inside story of
Union Carbide's India Nightmare," US News & World Report,
Jan. 21, 1985.
(8) See the Financial Times (London), Sept.
(9) See Dow’s 4th Quarter, 2002, financial
summary, available at: http://www.dow.com/financial/pdfs/noreg/161-00587.pdf.
By way of comparison, technical guidelines drawn up by Greenpeace
scientists in 2002 and handed over to Dow Chemical and the Indian
government indicate that a cleanup of Bhopal would cost somewhat
over $500 million. See Technical Guidelines for Cleanup at the Union
Carbide India Ltd. (UICL) Site in Bhopal, Madhya Pradesh, India.
Greenpeace Research Laboratories, University of Exeter, October
2002. Available at: http://www.studentsforbhopal.org/GP.TechGuidelines.pdf.
(10) See The Indian Express "MP wants
DOW to clean up Carbide mess, State to approach Centre for Supreme
Court intervention" by Hartosh Singh Bal, October 19, 2002
(11) See Forbes Magazine. "Dow's Pocket
Has a Hole" by Phyllis Bergman, March 31, 2003. Available at: