Observing Shahid Bhagat Singh Divas on 23 March, more than 250 survivors of the 1984 Union Carbide gas disaster sat on a day-long fast in support of the Koodankulam struggle against the nuclear power plant. Condemning Tamil Nadu Chief Minister J. Jayalalithaa’s act of charging Koodankulam protestors with “Sedition,” Bhopal survivors said that Bhagat Singh’s fate would have been no different in independent India than at the hands of the white colonial masters.
The Madhya Pradesh high court has ordered that the DRDE dispose off toxic waste from union carbide’s bhopal plant. Why the secrecy?
INDIA MAY have sent rockets into space. But as a nation, we are not yet potty trained. With more than six decades of industrialisation behind us, one would think that India would have a policy to deal with the remediation and restoration of pollution hotspots. But no. Our continued bungling of the Union Carbide contamination in Bhopal is a sorry case in point. In the lead up to the 25th anniversary of the Bhopal gas leak, the Madhya Pradesh government wanted to convey to people that the issue of contamination had been resolved, and that time was such a great healer that even without doing anything, the highly contaminated Bhopal factory site had magically cleaned itself up. How did the government do that? By getting scientists to say that the site is safe and that whatever was toxic is no longer toxic.
One prominent scientist recruited for this job was R Vijayaraghavan, Director of the Defence Research Development Establishment (DRDE), a supposedly high-tech laboratory of the Ministry of Defence. For an R&D agency with such pretences, the director’s statement on the Bhopal toxic waste was frighteningly simplistic. “For a 70kg man, there will not be any death even if he takes 200gm (of toxic wastes stored inside Carbide’s premises) by oral route,” he wrote in an official opinion given to Madhya Pradesh. His conclusion was worse. The government’s plans to open the factory site for public visits, he wrote, would not cause ‘any untoward, adverse or toxic effect to the public’.
Going by his suggestion, recruiting 17.5 lakh men weighing above 70 kg to consume about 200 grams of Carbide wastes each should take care of the 350 tons of toxic wastes without troubling anybody.
Bhopal activists countered this scientific skullduggery in their own comical, cynical way. Exactly a week before the 25th anniversary, they served up a banquet with a difference. On the menu was an assortment of ‘toxic delicacies’ – Semi-processed Pesticide on Watercress; Naphthol Tar Fondue; Sevin Tar Souffle; Reactor Residue Quiche; and Lime Sludge Mousse. All served with a complimentary bottle of B’eau Pal water. “Your appetite will contribute to a cleaner Bhopal,” invitees were told. Vijayaraghavan was named as the chef of the faux banquet.
Bhopalis are totally unimpressed by Vijayaraghavan’s brand of ‘science’. But the Madhya Pradesh High Court has unquestioningly reposed its faith in the Defence Laboratory. The court is hearing a case filed in 2004 seeking directions to make Dow Chemical clean up and compensate the affected people. A number of Bhopal organisations have impleaded in the matter. Time and again, they have underlined that any remediation effort must be informed by science, that the science must be subject to public scrutiny, and that the polluter must pay. On July 12, the court ordered that about 350 tons of toxic and obsolete pesticides currently stored in Union Carbide’s factory should be disposed of at the Defence Research Development Organisation’s (DRDO) facility located in the vicinity of Nagpur.
The said DRDO facility is truly off the radar. Jairam Ramesh is credited with having identified this hidden facility. If national security hinges on keeping the plant’s location secret, then our security is soon to be breached. The plant’s location will not remain secret for long as nosy journalists and apprehensive residents from Nagpur would make a beeline for it. Already, there are murmurs that DRDO’s mysterious operation is in Buti Bori, an industrial area 35 km from Nagpur.This is the third attempt to burn the wastes. The first two were abandoned after residents living near those facilities highlighted the inadequacy of the incinerators in handling Carbide’s wastes. The incinerator in Ankleshwar, Gujarat, caught fire because it had stored several hundred tons of toxic wastes in violation of its own hazardous waste authorisation. The explosion happened in April 2008 when Bhopalis were sitting on dharna in Jantar Mantar demanding, among other things, that the Bhopal wastes should be disposed of without subjecting other communities to another slow- motion Bhopal.
This is the third attempt to burn the wastes. The first two were abandoned after residents living near those facilities highlighted the inadequacy of the incinerators in handling Carbide’s wastes. The incinerator in Ankleshwar, Gujarat, caught fire because it had stored several hundred tons of toxic wastes in violation of its own hazardous waste authorisation. The explosion happened in April 2008 when Bhopalis were sitting on dharna in Jantar Mantar demanding, among other things, that the Bhopal wastes should be disposed of without subjecting other communities to another slow- motion Bhopal.
The second facility was in Pithampur, near Indore. This facility was constructed cheek-by-jowl with a residential area, in violation of setback guidelines. Incidentally, locating the Union Carbide facility in a densely populated part of town was an important contributor to the Bhopal disaster’s massive death and injury toll. The Pithampur facility too had an explosion nearly killing a worker just days before Jairam Ramesh was to visit it.
The Madhya Pradesh High Court’s order is problematic, even illegal, on many counts. Time and again, bureaucrats, politicians and now the court have used the fact that these wastes have lain here so long as a justification for getting rid of it quickly, by any means and for bypassing due process. The very least that needs to happen if the Bhopal wastes are destined to a facility is to verify if that facility has the wherewithal to receive the wastes. Other questions have to be answered too. Is the facility licensed? Does the facility have a good track record? Incineration is not just about burning; does the facility have a suitable mechanism to dispose the highly toxic ash and residue generated by burning the wastes? Are the people living near the facility comfortable with the facility’s operations? Was the facility designed to receive and dispose the kinds of wastes currently stored in Bhopal? Are workers and people in the vicinity informed enough to react suitably in the event of an emergency?
These are not irrelevant questions. Had they been raised before Bhopal, the world’s worst industrial disaster may never have happened. But we are a nation addicted to political and social expediency. Forget what is right, whatever can be pushed through must. The court has directed DRDE director to instruct DRDO to make arrangements to receive, store and dispose the toxic wastes as and when it is brought from Bhopal starting right away. The state government is directed to start packing and transporting the wastes within 10 days.
I made some phone calls, nothing that state pollution control boards or the environment ministry could not have done. It turns out that the DRDO facility is truly secret. People don’t even know where it is. The Maharashtra Pollution Control Board agrees that there is a facility somewhere near Nagpur,and that it does secret things. One person told me an incinerator was commissioned at the facility about 18 months ago to destroy some super-toxic military stuff, something to do with the Brahmos missile project. The regional officer of Maharashtra Pollution Control Board was categorical: “If you’re releasing pollutants to air or water, you have to get our consent. Defence establishments have no exemption as far as I know. The ammunition factory in Nagpur has our license.”
THE DRDO facility has never been inspected by the regulatory body. Till date, nobody has approached the Pollution Control Board seeking its approval. The facility does not have a license to operate. It does not have a hazardous waste authorisation. It has not submitted the mandatory emergency response plan to the district administration. The DRDO has said that its responsibility begins only after it receives the wastes from Madhya Pradesh. But as things stand, if the operator of the DRDO facility were to comply with the Madhya Pradesh High Court order, he or she could land up in jail for up to two years for violating environmental laws and handling hazardous wastes without authorisation. Licensing formalities aside, experts are skeptical whether the incinerator would actually be able to deal with the Bhopal wastes.
Thermax is the largest incinerator manufacturer in the country. It has supplied incinerators to the DRDO. Its CEO Unnikrishnan was categorical when asked if Indian incinerators can handle the Bhopal wastes. In a May 2010 letter that has been submitted to the high court, Unnikrishnan said: “To the best of our knowledge, there aren’t any incinerators currently in operation within our country that has the level of sophistication and safety systems in-built to tackle the waste under consideration.” A consultant advising GTZ, the German bilateral technical extension agency, concurs. This is particularly significant because the Germans are known to have perfected the art of destruction by burning.
The Bhopal wastes contain high levels of chlorinated chemicals and heavy metals. Burning chlorinated material in the presence of heavy metals is the best recipe for generating dioxins, a category of carcinogenic, immune system-busting chemicals that are the most toxic substances known to science. The opaque manner in which authorities have attempted to deal with the Bhopal wastes does not bode well for the evolution of a robust policy to deal with contaminated sites. Survivors’ groups say they were taken by surprise by the order as they were never consulted or heard on the matter. An October 2003 order of the Supreme Court is unequivocal in its emphasis on community participation in any matter relating to hazardous wastes. Clearly, the decision to send the Bhopal wastes to a secret DRDO facility in a clandestine manner is not informed by this apex court decision.
It is not just the Bhopal groups that were in the dark. Eminent scientist and Padma Bhushan awardee PM Bhargava is part of a technical committee appointed by the court to advice on disposal plans for the Bhopal wastes. He too had no idea about the current proposal until I spoke with him. “It is pertinent to know what the design specifications of the DRDO incinerator are, and whether it is designed to handle such wastes,” he says.
Bhopal survivors may have been denied an opportunity to comment on the proposal. But, the court records in its order its invitation to Dow Chemical to suggest a cheaper option. The consideration shown to Dow’s financial well-being is curious given that the American company has consistently refused to submit to the writ of Indian courts.
All this makes one wonder whether the rule of law and science-based decision-making are mere rhetoric. India is a country strewn with toxic hotspots. In Kodaikanal, a toxic mercury hotspot caused by Unilever’s thermometer factory has clocked 10 years without clean-up. In Mettur, farmers have registered complaints of groundwater and soil contamination by Chemplast’s chemical factories since the late 1960s. In Roro, Jharkhand, an abandoned hill of asbestos wastes, which has poisoned the air for decades, continues to spew lung-crippling fibres of death. Entire stretches of industrial areas, in Vapi, Ankleshwar, Vellore, Patancheru, Sukhinda valley are industrial disaster zones begging for remediation. In all these cases, agencies of the state are yet to decide whether the environment is contaminated, whether the contamination is caused by the company and whether the company is liable to repair the damages and compensate farmers.
One would imagine that the government and the courts would use the perverse opportunity provided by the Bhopal disaster to better advantage – to develop mechanisms to ensure that factories don’t pollute, and to implement a rigid polluter pays regime to enforce clean-up to world standards in a transparent manner, and to deter polluters.
But left to the agencies of the state, no such policy will emerge. After every disaster like Bhopal, or every time that we discover pollution as with Unilever’s mercury pollution in Kodaikanal, citizens will have to wage a battle against the combined might of the polluter and regulator over decades to get a place cleaned up. Forget rehabilitation of the Bhopal site. Perhaps, it is time we focused on cleaning up the state.
Nityanand Jayaraman is a Volunteer Campaign for Justice, Bhopal.
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.”
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.
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.
BY LORETTA TOFANI, SPECIAL TO THE SALT LAKE TRIBUNE
“Keepers of the Flame”. Picture from Char Broil website.
Original story and slideshow in the Utah Salt Lake Tribune
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Staff Reporter, The Hindu, 4 April 2007
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