WASHINGTON — Plaintiffs in one of the long-running legal battles around a catastrophe at a U.S.-owned pesticide factory in India have introduced new evidence in a New York courtroom that has breathed fresh life into a pursuit of justice that has stretched on for three decades.
The case focuses on a pesticide plant in Bhopal, India, that used to be owned by a subsidiary of Union Carbide, the U.S. chemicals manufacturer now owned by Dow Chemical. In 1984, the plant was the site of a leak of roughly 40 tons of deadly methyl isocynate gas.
The incident is now thought to have killed an estimated 15,000 people, including 4,000 people immediately, while injuring many thousands more. Further, the Indian government has estimated that around a half-million people have been affected by the fallout from the catastrophe, making the Bhopal tragedy one of the world’s worst modern industrial disasters. Those effects are still being felt today, with the current case focusing on unresolved water pollution issues.
For its part, Dow considers the issue closed, pointing to a $470 million settlement reached between Union Carbide and the Indian government in 1989. Dow bought the company two years later. While eight Indian nationals, former executives of the subsidiary, Union Carbide India Limited, were convicted in 2010 of negligence by the Indian courts, warrants were not able to be carried out on U.S. nationals who headed the company.
Since then, the company has held that Indian jurisdiction does not extend to the United States.
“Union Carbide is not present in India, so they’re not appearing in any of those cases,” Raj Sharma, a co-counsel for the plaintiffs in the New York case, told MintPress. “They have refused to submit to Indian jurisdiction, so against Union Carbide this case is the only route for justice for the plaintiffs.”
The New York case, known as Sahu II v. Union Carbide Corp., is not focused on culpability for the 1984 gas leak. Rather, it looks at chronic, unaddressed water pollution problems in the vicinity stemming from poor waste-treatment processes at the plant.
The case is a class action suit brought by 16 residents of Bhopal who allege ongoing harms from water supplies contaminated by residual pollution from the plant and incomplete subsequent efforts at remediation. Union Carbide has refused to clean up the site, claiming that its local subsidiary holds full responsibility.
Suits have also been brought against the state government of Madhya Pradesh, where Bhopal is located and which formally owns the land where the Union Carbide plant is located. Thus far, however, representatives of neither the state nor central government have appeared in court.
“For a large proportion of this period of over three decades, this contaminated groundwater has been the only reliable drinking water source for tens of thousands of people,” Colin Toogood, campaigns manager for Bhopal Medical Appeal, a legal assistance and advocacy group, told MintPress.
“After intense campaigning from the combined Bhopal survivor organizations, some of the communities known to be affected have been provided with an alternative water supply. But this alternative supply is far from reliable and does nothing to address any damage already done to the health of local residents.”
Design liability
In recent weeks, the plaintiffs’ legal team introduced evidence that attempts to directly address the issue of liability for the pollution spreading from the Bhopal plant. While Union Carbide has maintained that its Indian subsidiary was responsible for the plant’s final design, new testimony by plant officials and others appears to suggest otherwise.
“The gas disaster didn’t cause this water pollution. Rather, the problem was the plant’s waste-disposal system,” Rick Hertz, co-counsel on the case and litigation coordinator for EarthRights International, a legal advocacy group, told MintPress.
“Union Carbide transferred its waste-disposal process from a plant in West Virginia, where they put waste through a series of processes and then dumped it in a river. But they didn’t have a river in Bhopal, so they put this stuff in ponds and those ponds leaked. They say they eventually fixed the leaks – we don’t actually know – but at the end of the day they buried this waste in landfills.”
At issue is where various phases of the project design took place. In previous rounds of litigation, the courts found that overall design may have taken place in the United States but that final detail-level design took place in India; hence, responsibility would lay with the Indian subsidiary. But the new testimony appears to show that this detail work, too, took place in the United States.
“We submitted a declaration from the project manager, who said he was an employee of Union Carbide, not of the subsidiary. So, for all of the design he did, Union Carbide was responsible because he was their employee,” Hertz says.
“We also submitted a declaration from another plant employee who said the same thing, as well as declarations from two experts in waste-disposal design who said the design that Union Carbide supplied was the cause of the problem – that the problem was with the ‘big picture’ design, not the detail design.”
According to the declaration offered by the project manager, Lucas John Couvaras, the “process design reports” were prepared by Union Carbide and approved by its managers “before they were sent off to India.” Meanwhile, an employee of the Indian subsidiary, Tota Ram Chauhan, has likewise officially stated that Union Carbide’s “engineering department in the United States was responsible for approving any modifications or changes to the plant design.”
In response to the new evidence, Union Carbide has pointed to findings from a parallel case, Sahu I v. Union Carbide Corp. That case, which detailed property claims surrounding the pollution allegations, was dismissed by U.S. courts last year after finding there was insufficient proof of the company’s involvement. (The new case, Sahu II, rests not on property damages but rather on personal injury claims.)
A company representative told the Indian media last week that last year’s decision established that “no reasonable juror could find that [Union Carbide] participated in the creation of the contaminated drinking water.” The representative stated the new evidence “adds nothing of value to this conclusive record.”
Two disasters
As the legal wrestling takes place over responsibility, tens to hundreds of thousands of people continue to be impacted by pollution from the Union Carbide plant. Bhopal Medical Appeal raises money to fund health care for survivors of what the group’s Colin Toogood refers to as the two Bhopal disasters – the 1984 gas leak and the pollution that he says has impacted on local communities both before and since the gas leak.
“The groundwater in Bhopal, around the abandoned Union Carbide factory, is heavily contaminated with highly toxic chemicals, including organochlorines and pesticides, and with heavy metals,” he says.
“The contamination is being caused by water leaching through toxic waste that was buried on the factory site, into the aquifer, and by leakage from the solar evaporation ponds located just outside of the factory site. The solar evaporation ponds, to which liquid effluent was pumped, are known to have been leaking years before the disaster, and thus the ‘second’ Bhopal disaster, in fact, pre-dates the 1984 gas disaster.”
Even today, decades after these problems were first recognized, there is no public information available on the full extent of the pollution from the site. In 2009, a Delhi-based watchdog group called the Centre for Science and Environment found high levels of toxins more than two miles away from the Union Carbide plant site.
“For more than 25 years (even before the accident took place and just a few years after manufacturing began) the residents of the area have been exposed to chemical-laced groundwater. And, they will continue to be exposed [so long as] the site remains contaminated,” the report states.
“The waste stored within the factory premises is just [a] small part of the total contamination present in the site. The focus of the government to just dispose of the stored waste and ignore the site contamination problem is not going to solve the environmental problems emanating from the UCIL factory.”
Yet Toogood says that broader testing has never been undertaken, and he warns that water flowing through a local aquifer is bringing toxins farther afield with each year.
“There has never been a full contamination assessment, and the testing carried out to date has never gone so far as to reach the furthest extent of the contamination,” he said.
“It is a matter of the utmost urgency that a full, grid-based contamination survey is performed, to accepted international standards, at the earliest possible opportunity. Until that time, we can have no idea how many people are still consuming this heavily contaminated water.”