Union Carbide Not Responsible for Bhopal Tragedy, Affirms Appeal Court
by Sunita Sohrabji, India West, 6 June 2016
The Second Circuit Court of Appeals in New York May 24 affirmed a lower court’s ruling that found the Union Carbide Corporation was not responsible for cleaning up the mess created by the 1984 Bhopal tragedy in India, which killed approximately 10,000 people and injured about 600,000.
Thirty years after methyl isocyanate leaked out of the Bhopal plant, aquifers as far as 3.5 kilometers away are still contaminated with toxic wastes. Owners and occupants of land near the Bhopal plant are suing UCC – which was bought by Dow Chemical in 2001 – for causing injuries resulting from hazardous contaminants attributed to the plant’s inadequate waste management system. Residents living near the now-shuttered site have suffered from a variety of illnesses from drinking contaminated water, and a huge number of babies have been born with birth defects. EarthRights and the plaintiffs want UCC to clean up the toxic wastes from the site; UCC has said it is not responsible.
The plaintiffs – through EarthRights International, a non-profit organization representing thousands of Bhopal victims – have stated that UCC provided the design of waste contamination pits necessary to store hydrochloric acid, a by-product of the methyl isocyanate manufacturing process. Hydrochloric acid is the primary source of groundwater contamination emanating from the Bhopal factory.
Judge Robert Katzmann on May 24 upheld a 2014 ruling by New York District Court Judge John Keenan, which found that the Union Carbide Corporation – UCC – had turned over the day-to-day responsibilities of managing the pesticides plant to Union Carbide India Limited – UCIL — which owned and operated the facility. UCC, however, owned 51 percent of UCIL’s stock.
Keenan has ruled in favor of UCC on three previous occasions. In 2014, Keenan ruled that UCC had supplied a design to UCIL which would use non-porous clay to line the waste contamination pits. UCIL instead used a cheaper, thin polyurethane.
In his decision on the case – known as Sahu vs. Union Carbide Corp, named for the chief plaintiff Jagarnath Sahu – Katzmann quoted from Keenan’s 2012 ruling, which noted: “Even after undertaking “a discovery expedition worthy of Vasco de Gama, it is clear from the undisputed facts that UCIL, and not UCC, designed and built the actual waste disposal system.”
Katzmann also found that testimony from two witnesses – Jurgen Exner and Ian von Lindern – was not substantive enough to support EarthRight’s contention of UCC’s involvement in designing and making the waste contamination pits.
Critically, Katzmann also upheld that Lucas John Couvaras, a plant manager at the Bhopal site at the time of the gas leak, could not be deposed. In a statement introduced in court, Couvaras claimed that he worked for UCC.
UCC however, claimed that Couvaras was a contractor employed by UCIL. Couvaras’s deposition is key to the case, as his testimony stating that he was an employee of the Union Carbide Corporation would be sufficient to establish UCC’s responsibility for the industrial disaster.
Couvaras – a retired engineer who lives in Houston, Texas – could not be reached for comment.
“We disagree with the court’s interpretation of the evidence." said Richard Herz, senior litigation attorney for EarthRights International, in a press statement. "The court concluded that UCC is not responsible for the actions of its own employee, who oversaw the construction of the plant. Additionally, two leading experts concluded that UCC’s technology and waste disposal strategy for the plant was improper for the site, and caused the water pollution that we still see today.”
Marco Simons, general counsel for ERI, said the organization was committed to getting justice and cleanup for the people of Bhopal. EarthRights and the plaintiffs plan to file a petition for re-hearing.
Dow Chemicals has said it is not responsible for the cleanup. In 2012, the Indian government pledged $4.5 million to a German company to clean up 350 tons of toxic waste from the area, but that work has not yet begun.