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Bhopal verdict is against public health and democracy

July 06, 2012 15:53 IST

The quest of Bhopal victims for justice must continue and till the truth prevails because it is not their struggle victims of Bhopal alone. It is a litmus test that will determine that what prevails in the conflict between naked lust for profit at any human cost and public health of the present and future generations, says Gopal Krishna.

Union Carbide Corporation and Warren Anderson are still notified as absconders by an Indian court. The quest of Bhopal victims for justice must continue and till the truth prevails because it is not their struggle victims of Bhopal alone. It is a litmus test that will determine that what prevails in the conflict between naked lust for profit at any human cost and public health of the present and future generations.

Union Carbide India Limited was a wholly owned subsidiary of UCC, which had 50.9 percent holdings in its Indian subsidiary. Therefore, the plant in Bhopal was the responsibility of UCC. There is no exact figure of the number killed. Over 8,000 men women and children were killed within the first three days of the disaster. In a 1990 book Abuse of Power: Social Performance of Multinational Corporations; The Case of Union Carbide, it is estimated that the death toll was around 10,000. The death toll has increased manifold since then. UCC had commissioned a toxicological study of MIC at the Carnegie Mellon University in 1963 and 1970. The findings of the research were never released.

The UCC's chemical unit in Bhopal had a record of accidents and fatalities due to other causes. In 1981 a plant operator was killed by a phosgene gas leak. A further phosgene leak in January 1982 severely injured 28 workers and in the same year MIC escaped from a broken valve resulting in four workers being exposed to the chemical. Besides this, workers were subject to routine low level exposure. The results of secret medical tests conducted on the workers by Carbide doctors were sent to the U.S. and never released.

A 'business confidential' safety audit conducted by a US team in May 1982 identified '61 hazards, 30 of them major and 11 in the dangerous phosgene/MIC units. Nothing was done.'

The decision appeal and contest the verdict of US District Judge John Keenan is important because had similar quest been for incidents of UCC's Bhopal plant in1981 and 1982, there would have been no disaster in December 1984. The role of central and state government must articulate it categorically that they are with the victims and not with the absconding company and its official Anderson. 

The Madhya Pradesh chief minister must fulfill the promise he made in the state assembly wherein he had assured the legislature that his government would seek central government's intervention in the case and if the latter does not do so, the former would align itself with the victims. He gave this assurance on July 26, 2010. It is hoped that after careful perusal of the verdict the state government would undertake the promised action.

So far all legal actions to hold UCC accountable in US courts has failed to get any relief. On November 3, 2008, the US Court of Appeals for the Second Circuit had reversed Judge Keenan's dismissals.

When Josh F Keenan, District Judge of the District Court of United States of America pronounced his verdict on June 26, 2012 in the case of Janki Bai Sahu, et al Vs Union Carbide Corporation and Warren Anderson rubbed salt to the injury of the victims of industrial disaster in India's Baghdad, it was not at all surprising. The judge in question revealed his cruelty and insensitivity for the third time by referring to victims' quest for justice as "a discovery expedition worthy of Vasco da Gama."

This gave a sense of deja vu. The US Environmental Protection Agency issued a final rule on July 12, 1989, banning most asbestos-containing products. After spending ten million dollars and conducting a ten year study, USEPA accumulated a 100,000 page administrative record, announcing that it would phase out and ban virtually all products containing asbestos. This ban was to apply to the manufacturing, importing, processing and distribution of asbestos products.  US EPA's grounds for the ban states: "asbestos is a human carcinogen and is one of the most hazardous substances to which humans are exposed in both occupational and non-occupational settings.

But the verdict of October 18, 1991 by the Fifth Circuit US Court of Appeals of New Orleans in the asbestos matter overturned the ban imposed by USPEA. Giving a severe blow to the reputation of US judiciary, the Appellate Body of World Trade Orgnisation, World Health Orgsanisation and several other UN agencies besides more than 50 countries found that USEPA was right because it is impossible to use asbestos in safe and controlled manner.

Ironically, in the US, Dow Chemicals Company has set aside $2.2 billion to address future asbestos-related liabilities arising out of the Union Carbide acquisition. Liveris heads Dow Chemical Company that purchased UCC and its Indian investments in 1999 has consistently denied inheriting any liability for the Bhopal gas disaster due to leakage of 40 tonnes of lethal methyl isocyanate gas from UCC plant into the surrounding environment, which has caused more than 20,000 deaths and 100,000 disabilities.

UCC formerly made products containing asbestos, and UCC once mined asbestos for sale to customers. The mine of the UCC was sold in 1985. Hundreds of thousands of people have sued asbestos companies that made products containing asbestos. Many manufacturers of asbestos-containing products are bankrupt as a result of asbestos litigation.

If Dow can assume responsibility for asbestos-induced illnesses among victims in USA, how can it deny responsibility towards the victims of Bhopal disaster and its continuing toxic legacy in an explicit case of double standards?

The victims of the industrial disaster of Bhopal rightly seek monetary damages and medical monitoring for injuries caused by exposure to soil and drinking water polluted by hazardous wastes produced by Warren Anderson headed UCC and its arm UCIL given the fact that parent company and its subsidiary is one entity.

The victims rightly hold UCC and Anderson liable for their injuries on the grounds that they were direct participants and joint tortfeasors in the activities that resulted in the pollution, they worked in concert with UCIL to cause, exacerbate, or conceal the pollution and UCIL acted as UCC's alter ego justifying piercing the corporate veil.

UCC was incorporated in India in 1934. Indian Parliament passed Companies Act, 1956 which required affiliates of foreign companies like UCC to register as separate companies under Indian law. UCC reduced its share of ownership in its Indian subsidiary (then called National Carbon Company (India) Limited from 100 percent to 60 percent in accordance with new Indian law by registering as an Indian company and selling shares to Indian citizens. All but one or two UCIL board members, all UCIL executives, and all regular or seasonal employees are Indian nationals. The names of these board members must be put in public domain for scrutiny. 

In 1969, the Bhopal Plant begun operations as a pesticide formulations plant on land leased in Madhya Pradesh. As a formulations plant, UCIL imported the chemical components of pesticide products and mixed the final product, such as the 'Sevin' pesticide, in India. At that time, UCC owned 60 percent of UCIL. In the latter half of the 1970s, the Bhopal plant was back-integrated into a facility capable of manufacturing the pesticides itself.

In 1975, the New Master Plan for City of Bhopal established a separate district for "hazardous industry" in an open area 15 miles from the centre of town, and zone the area where UCIL's plant has been constructed for commercial and light, non-hazardous, industry only. City authorities wanted UCIL to move its operations to this area. Disregarding this, during Emergency imposed by Indian National Congress led Indira Gandhi government, on October 31, 1975 the Union ministry of industrial development gave licenses to UCIL to produce up to 5,000 tons of pesticides a year in Bhopal plant. During Emergency, in 1976 Madhya Pradesh Town and Country Planning Board classified the UCIL plant as 'general industry' rather than 'hazardous industry',  allowing this hazardous UCC plant to stay in its established location rather than move to Bhopal's new hazardous industry zone.

Indian Parliament adopted a legislation requiring that Indian companies partly owned by foreigners to reduce foreigners' ownership share. For companies with 60 percent foreign ownership, the new legal maximum was 50.9 percent. UCIL complied with it by the end of 1978 through sale of additional shares of stock offered only to Indians; these shares were held by 24,000 different persons or entities, with the government of India holding 25 percent of UCIL stock. Thus, in connection with its Bhopal project, UCC's ownership interest in UCIL was reduced to 50.9 percent.

On December 24, 1981, a supervisor and two workers were exposed to phosgene leak during a maintenance operation at the UCC's plant in Bhopal. One of the workers died from effects of phosgene inhalation. This accident made UCC come up with its response plan that included additional training and some design changes. On February 10, 1982, 25 workers were injured when a pump seal failed and significant quantities of MIC, phosgene, and hydrochloric acid gases escaped into plant. Some treated on-site; 16 sent to local hospital. The fate of the medico-legal case of the worker who died and the workers who were exposed merits attention. On December 31, 1982, Warren Woomer, the last remaining US employee, left the Bhopal plant. Was it a part of a plan? No one seems to know.

UCIL declared to Madhya Pradesh State Pollution Control Board that its plant emitted carbon dioxide only not the other gases including phosgene and MIC that occasionally leaked. This despite the fact that animals had died after drinking water from a stream just outside the plant polluted by fluid runoff from the plant in 1983. In December, 1983, Bhopal plant manager Jagannathan Mukund was given UCC safety award for operating 12 months without serious incident.

In October 1984, UCC considered the idea of dismantling the Bhopal plant and shipping equipment to Brazil or Indonesia and asked UCIL to draw up feasibility study and cost estimates. UCIL reported back on November 29, 1984. The question of what to do with the plant was pressing because the plant will have no source of raw material required when UCIL's Foreign Collaboration Agreement with UCC was to expire on January 1, 1985. The existence UCC's control of UCIL is a universal truth. The US District Court has erred in choosing not to pierce the corporate veil of UCC.

The government of India had filed a suit on September 5, 1986 for damages in the court of district judge, Bhopal (Regular Civil Suit N. 113/86) against the US company, Union Carbide Corporation, Connecticut, USA on behalf of all the persons, who have suffered damages due to Bhopal gas leak disaster praying for "a decree for punitive damages in an amount sufficient to deter the defendant Union Carbide and other multinational corporations involved in similar business activities from willful, malicious and wanton disregard of the rights and safety of citizens of India."

The Indian government noted in its reply in the court that Union Carbide's management policies, states that "it is the general policy of the corporation to secure and maintain effective management control of an affiliate."

The higher US judiciary should accept the original submission of the government of India that "the corporation and its subsidiaries are treated as a unit, without regard to the location of responsibility within that unit". Consequently, an illegal act by it be deemed as the act of the corporation, without consideration to its location of responsibility. The customary alibi of corporations like Dow Chemicals is an act in sophistry designed to conceal fact of crime and criminals of the upper-world.

The US government should disclose all the trade secrets of the UCC and its research and development centre that Union Carbide operated in Bhopal since 1976 that was suspected to be experimenting with wartime use of chemicals. This suspicion regarding the disaster being a consequence of experimenting with war time chemicals is yet to be probed. The US government should undertake and facilitate such probe.

The flawed reasoning of Keenan is based on selective reading of documents. It has come to light that UCC planned to shut down UCIL's agricultural products operations that included chemical pesticide manufacturing. The fact of collusion of constitutional and extra constitutional authorities in 1970s and during 1980s merits a high powered judicial probe to ascertain the incestuous relationship between certain shareholders, board of directors, government officials and the legislators.

This probe find out the reasons behind the questionable judgment of the 1989, in which a particular beach of Supreme Court of India directed UCC and UCIL to pay a total of $470 million instead of $ 3.3 billion which was originally demanded, in full settlement of all claims. This amounted to approximately $300 to $500 which was not even enough for monthly medical bills.

If one compares it with the $2.5 billion offered by Johns Manville Corporation for about 60,000 claimants of injury caused by exposure to asbestos, the injustice becomes quite stark. The judges of all ilk and nationality who ridicule victims' quest will also be judged in the court of history and humanity.

Gopal Krishna