Volume 90 Issue 22 | p. 4 | Letters
Issue Date: May 28, 2012

The Saga Of Dow And Bhopal

Department: Letters

In the articleLet Dow Sponsor the Olympics,” Jean-François Tremblay correctly writes that an Indian boycott of the Olympics is not a good course of action (C&EN, March 19, page 27). Here’s why.

The sequence of events in the Bhopal disaster is well documented in Wikipedia.

In 1934, Union Carbide India Ltd. (UCIL) was formed, later expanding to about 9,000 employees in 14 plants, including Bhopal (completed in 1970). Union Carbide Corp. (UCC) owned approximately 51%, with Indian investors (including the Indian government) owning the remainder. UCIL, not UCC, was the owner and was responsible for the operation and maintenance of the Bhopal plant. This implies that UCIL and its management, not UCC, were directly responsible for the Bhopal tragedy.

Methyl isocyanate was released as a result of water entering an MIC storage tank in December 1984.

Warren Anderson, at that time chairman and chief executive officer of UCC, on Dec. 7 flew to Bhopal to personally direct UCC efforts to help the victims. He was arrested upon deplaning in Bhopal. After posting bail, he left India and, understandably, has not returned. The decision to arrest Anderson was about the worst that could have been made with respect to providing aid to the Bhopal victims. It seemed to set the precedent that finding a scapegoat and getting money were more important than aiding the stricken people.

In 1989, the Supreme Court of India directed a $470 million settlement by UCC and UCIL. Was that enough? Perhaps not, but surely a settlement directed by the Supreme Court of India should have had some consideration for the Bhopal victims and should have carried some weight in future proceedings.

In 1994, the Supreme Court of India allowed UCC to sell its share in UCIL to Eveready Industries India Ltd. (EIIL). The Bhopal plant was sold to McLeod Russel, India (MRI). The statement in Tremblay’s article that whoever buys a company buys its liabilities implies that EIIL and MRI bought UCIL’s liabilities and UCC and later Dow Chemical are free of them. On the practical side, Dow probably has deeper pockets than EIIL or MRI, and in India it is politically more expedient to go after U.S. companies than Indian companies.

Tremblay also reported that Cherokee Investment Partners offered to clean up the site. Bhopal activists blocked the settlement so “the polluter” would not escape. This continues the pain of the true victims of the tragedy and continues the “find a scapegoat and more money” approach.

By Philip Lowell
Lakeway, Texas

 
Chemical & Engineering News
ISSN 0009-2347
Copyright © American Chemical Society
Comments
Colin Toogood (Fri Jun 01 07:42:48 EDT 2012)
Dear Mr.Lowell,

I think that the statements below, from an open letter to the London Olympic Organisers, by Amnesty International, may paint a more complete picture than your letter above.

If you would like further clarification on any of these points please feel free to contact the Bhopal Medical Appeal at: info@bhopal.org

From Amnesty International open letter 13 January 2012:
It is well established in law that responsibilities arising from a company’s own acts and omissions do not go away by virtue of a transfer of shares in a subsidiary. Indeed, USbased UCC is the named defendant in four ongoing legal actions related to the Bhopal
events, including a pending criminal prosecution in which the company is accused of ‘culpable homicide not amounting to murder’. Despite having been criminally charged in
1987, UCC has never appeared before the Indian court. The Indian magistrate presiding
over the prosecution declared the company and its chief executive officer "absconders"
from the law. Until today, UCC continues to evade justice.

Neither US-based UCC when it sold its interest in UCIL in 1994, nor UCIL (who then
became Eveready Industries India Limited) when it relinquished the lease of the Bhopal
site to the Madhya Pradesh State Government in 1998, had completed the clean up
programme they were required to undertake prior to handing back the site. The Bhopal
factory site continues to be heavily contaminated today with stockpiles of waste brought in and/or generated by UCC/UCIL while the plant was in operation and prior to the handover to the state. The “Polluter Pays” principle is well enshrined in Indian law, and has been upheld in numerous Indian Supreme Court judgments.

Amnesty International does not dispute that the Madhya Pradesh State Government has
responsibility for ensuring clean up of the site. As a matter of expediency, an Indian court affirmed that “the question as to who is responsible for the clean up cannot overshadow the question of clean up itself.” This does not detract from Dow’s and UCC’s fundamental responsibilities, which exist alongside those of the state. This view is supported by international standards on business and human rights as well as statements made by the Government of India. When in early 2008 the Government of India discussed Dow’s future investments in the country and the company’s potential liabilities in relation to Bhopal, the Indian Ministry of Law, when consulted by India’s Department of Chemicals and Fertilizers, expressed the opinion that: "irrespective of the manner in which UCC has merged or has been acquired by Dow Chemicals, if there is any legal liability, it would
have to be borne by Dow Chemicals,” and some of the company's investments in India
could be at risk.

Indra Sinha (Tue Jun 05 18:57:22 EDT 2012)
Mr Lowell either does not know, or ignores, the facts that:

UCC, the American parent was majority- and controlling-shareholder in UCIL, exercising tight control over its Indian subsidiary, itself making and approving key decisions that contributed directly to the gas leak, for example the decision, opposed by the UCIL managing director, to store MIC in three locomotive sized tanks;

that when the plant began losing money, UCC through its Bhopal Task Force ordered and oversaw a programme of cost-cutting, including the sacking between 1980-84 of half the workforce. The crew of the dangerous MIC unit was slashed from twelve to six, and its maintenance staff from six to two. In the MIC control room a single operator had to monitor seventy-odd panels, indicators and controllers, all old and faulty, which often failed. Safety training was reduced from six months to two weeks… the list goes on;

that UCIL managers cannot be held responsible for decisions which were not theirs, but those of American executives;

that UCC was also directly responsible for the design (in West Virginia, of the site's three huge "solar evaporation ponds". In 1972. during the design process a UCC engineer wrote: "‘I cannot believe, that we would be held blameless if we recognized potential problems here and did not speak up… a question can be raised as to whether the soil conditions at the site lend themselves to constructing ponds economically with completely impervious bottoms that would prevent seepage of the chloride into the ground waters and therefore into the community water supply… The essence of [the] proposed solution, lies in the less advanced environmental conscienceness [sic] in India.’ The engineers warned that the proposed design risked the ‘danger of polluting subsurface water supplies in the Bhopal area;

that by 1982 the ponds were indeed leaking – one had completely emptied – causing panicky telegrams to be sent from UCIL to UCC, but communities downstream were not warned of the danger to ground water and their drinking wells;

that in 1989 even after UCIL and UCC knew (we know this from an internal UCC memo) that soil and and water in the site were lethally contaminated they failed to issue warnings and instead insisted that drinking water was safe and that this silence lasted ten years until a Greenpeace report established the extent and severity of the contamination;

that by this time hundreds of children had been born damaged (and continue to be born damaged) in communities whose water had become dangerous to use;

that the issue of water contamination was not covered by the settlement, as was confirmed by a letter of June 28, 2004 from the Indian government to a US court. The letter stated: "“It is the official position of the Government 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 raised in the case at bar . . . Pursuant to the ‘polluter pays’ principle recognized by both the United States and India, Union Carbide should bear all 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” ;

that an opinion given to the Indian Prime Minister's office by the Ministry of Law, dated February 2 2008 states: "Irrespective of the manner in which UCC has merged or has been acquired by Dow Chemicals (sic), if there is any legal liability, it would have to be borne by Dow Chemicals";

that as UCC and its executives would appear from the facts to have a share of the liability both for the gas leak, and for the subsequent water contamination, those (separate) liabilities, including the "polluter pays" obligation to remediate the site, surrounds and, crucially, the ground water, would pass to Dow Chemical;

therefore it is not unreasonable for the Bhopal survivors to be pursuing Dow Chemical, for them to protest against its sponsorship of "the most sustainable ever [Olympic] games", and for any fair-minded person to wish them well

Mark E. Smith (Thu Jun 07 06:03:28 EDT 2012)
I don't understand. If DOW can afford to be a sponsor of the Olympics, certainly it can afford clean-up and compensation in Bhopal. DOW is like a spoiled brat whose parents never explained that first you must tend to your responsibilities, and only then can you can go play games.
Collis Brayne (Sun Jun 10 16:56:13 EDT 2012)
Well said Mark!

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