August 1, 2014: Indeed ‘the central question remains “whether UCC played a
sufficiently direct role in causing the hazardous wastes to seep into the
ground to be held liable.” The simple answer is yes, it did have a direct role because
the Bhopal
Plant constructed by Union Carbide Corporation (UCC)’s Project Manager Lucas
John Couvaras. But on July 30, 2014, in
the attached 45 page decision, the New York federal court ruled that UCC could
not be sued for ongoing contamination in and around the plant despite evidence
to the contrary. Couvaras was a UCC
employee during the relevant period. For all these years UCC kept this fact
hidden. In a glaring act Judge John F Keenan of United States District Court, decided to deny the opportunity of deposition
to Couvaras.
Now the Second Circuit Court of Appeals,
which will hear the plaintiffs’ appeal. EarthRights International had filed the
lawsuit Sahu v. UCC on behalf of residents of Bhopal whose land and
water are contaminated by waste from the UCC’s plant. The state of Madhya
Pradesh which now owns the Bhopal site has also been named in the case.
Through its Project Manager, UCC had final authority over
even detail design, including of the waste disposal system. Couvaras’s own
declaration states that he “was a UCC employee assigned to UCIL from 1971 to
the end of 1981, to manage the engineering and construction of the plant based
on proprietary UCC design.” T R Chauhan, a former employee of Union Carbide
India Limited of UCC from 1975 to 1985 also submitted a declaration that Couvaras
was a UCC employee “who was sent to India to oversee the detail design and
erection of the plant”. The Definition of Services between UCC and UCIL states
that UCC’s Chemicals and Plastics Engineering Department provided “a project
manager on loan to UCIL for the project.” Couvaras’s own declaration avers that
he was “a UCC employee assigned to UCIL from 1971 to the end of 1981, to manage
the engineering and construction of the plant.
Despite taking on record the fact that UCC
provided the MIC process technology for the Bhopal plant, the Court commits a blunder in
arguing that waste disposal issues at UCC’s Institute plant is not relevant to
the waste disposal issues at the Bhopal Plant. It appears to be a case of
sophistry wherein by referring to different methods for waste disposal at Bhopal
and Institute, the reference to latter is deemed irrelevant because the
waste disposal strategy at Bhopal “lacked key components of the Institute
system”.
Feigning incomprehension of facts, the court does not draw
on the import of the contention that “UCC’s Institute plant, which also used
the MIC process, had problems with leaks and discharged more toxins than its
permits allowed”.
A letter from UCIL to the Indian
Department of Industrial Development dated September 30, 1982, seeking approval
for continued collaboration on MIC-based pesticides with UCC demonstrates
latter’s continued involvement in the Bhopal Plant.
The court has chosen not to pierce the
corporate veil and DEBUNK the myth that “international affiliates are separate
legal entities” and chooses to be indulgent towards UCC.
ToxicsWatch Alliance (TWA) holds
that US judiciary is known for anti-people, anti-public health and
anti-environment decisions. 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, the
owner of UCC has set aside $2.2 billion to address future asbestos-related
liabilities arising out of the UCC’s acquisition. Dow 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 lakhs of 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?
Madhya Pradesh High Court has rightly held Dow
responsible for the clean-up of the contaminated site in a ongoing case.
The
“Bhopal Plant” was operated from 1969 to 1984. It was closed following the
disaster on 2-3 December 1984. UCIL was
incorporated in India in 1934.
For Details:
Gopal Krishna, ToxicsWatch Alliance (TWA), Mb: 08227816731, 09818089660,
E-mail:gopalkrishna1715@gmail.com, Web: www.toxicswatch.org
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