Public Interest Litigation in the Madhya Pradesh High Court

Abandoned Solar Evaporation Pond. Union Carbide, Bhopal.

Following adapted from ‘Injustice Incorporated. Corporate Abuses and the Human Right to Remedy’. Amnesty International, 2014.

In July 2004, one of the victims’ organizations, the Bhopal Gas Peedith Mahila Udyog Sangathan (BGPMUS), filed proceedings in the Madhya Pradesh High Court against a number of defendants, including the government of India, the Madhya Pradesh state government, Union Carbide Corporation (UCC), Eveready (formerly Union Carbide India Limited) and Dow.1 The claim, which is ongoing, seeks damages of US$3.3 billion for environmental pollution, environmental remediation and medical assistance for victims. Dow had asked for its name to be removed from the list of respondents on the grounds that, as a separate legal entity from UCC, it had nothing to do with the issue under consideration, and that, being a foreign company with no business or assets in India, it could not be subjected to the jurisdiction of the Indian court.2

This is despite one of its own subsidiaries, Dow Chemical International Private Ltd (incorporated in 1998), appearing one year later to request a stay on the summons issued to Dow in the criminal proceedings.3 Eveready’s parent company has also denied responsibility: “Eveready is neither responsible for the pollution as reported, nor is it liable for the clean-up of the toxic material and that the obligation and liability of the clean-up, if any, should be that of the erstwhile owners of UCIL viz, UCC USA.” 4

On 30 March 2005, the High Court directed the government of India to constitute a Task Force for implementation of toxic waste removal,5 and the judge’s opinion was that the authorities should be asked immediately to start containing the toxic material, irrespective of liability. The Task Force recommended that the toxic waste be removed and disposed of at a facility in Pithampur, Madhya Pradesh, and an incinerator at Ankleshwar, Gujarat. The proposal was opposed by the authorities in Gujarat.6 Another proposal to dispose of the waste at a facility in Nagpur, Maharashtra, was also blocked following protests from local communities and the Maharashtra government.7

In the context of this litigation, the Department of Chemicals & Petrochemicals (Ministry of Chemicals and Fertilizers) filed an application in the High Court on 10 May 2005 requesting Dow, UCC and Eveready to deposit INR1 billion (approximately US $23million at the time) as an advance for remediation costs.8

The court deferred a ruling on the merits of that application, reiterating the view that the question of who was responsible could not overshadow the immediate clean-up work requested of the government. As of today, there has been no decision on the request for advance payment. In the meantime, the government of India decided to bear the cost of remediation (presently estimated at INR3.1 billion (approximately US$ 58 million) “pending restitution from the polluter”.9

In June 2010, the central government announced that it had “approved the setting up of an Oversight Committee in the Ministry of Environment and Forests to co-ordinate and monitor all activities relating to waste disposal, decontamination and remediation.”10

In June 2012, a group of ministers from the central government responsible for overseeing all issues related to the gas leak, gave approval to the Madhya Pradesh government to dispose of 350 tonnes of hazardous waste in Germany.11 The plan, however, fell through in late 2012, after public concern was expressed in Germany about receiving the wastes.12

In the meantime, in view of the slow progress and the central government’s repeated failures to comply with court directions, on 9 August 2012 (eight years after the case began), the Supreme Court of India gave six months to the central and Madhya Pradesh governments in which to begin to dispose of waste lying in and around the abandoned Bhopal plant.13

In August 2013, the Central Pollution Control Board informed the Supreme Court that, following a series of trials at the facility, the waste could be disposed of at an incineration plant in Pithampur, 200km from Bhopal. However, this option – which is still under consideration – has also proved controversial. People living near the incinerator are concerned about the environmental implications of waste disposal and also that the authorities’ safety testing in relation to the Bhopal waste is insufficient.14

Local communities and NGOs have opposed proposals to dispose of the waste without adequate attention to the accumulated soil and water contamination. The fact that the people of Bhopal have been living with hazardous waste for almost three decades is not contested. The Supreme Court of India, the Central Pollution Control Board, the group of ministers responsible for overseeing all issues related to the gas leak have all explicitly recognized the existence of the harmful nature of the waste and the need to remove it.

At the time of writing, a final court order is pending and the 350 tonnes of waste remains in Bhopal. It is important to recognize that this material is only a small fraction of the total hazardous waste at Bhopal, most of which lies unsafely buried. Clean-up has become a blame game in which each party points the finger at the other while none take any action. UCC claims in its website that the Madhya Pradesh government is responsible.15 Eveready in turn states that UCC is liable.16 All the companies concerned, together with the central and state government of Madhya Pradesh, are defendants in a 2004 Public Interest Litigation claim before the Madhya Pradesh High Court for plant site remediation.

While legal battles in India continue, the contaminated plant site continues to endanger the lives and health of surrounding communities. In August 2013, the CSE released an environmental remediation Action Plan collectively developed by a multi-stakeholder expert group which included a number of relevant research institutes, waste management companies, the Central Pollution Control Board, civil society and affected communities, and a former plant operator at UCIL. The Action Plan outlines detailed recommendations for short, medium, and long-term measures to remediate the site.17

An Indian government letter, dated June 8, 2004, to the Lower District Court, Manhattan, in a case focusing on the remaining chemical contamination in Bhopal, 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… 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.”

References

1: The claim originally only named The Dow Chemical Company (Dow) as corporate respondent. On 14 September 2004 Dow requested the Court also implead Union Carbide Corporation and Eveready Industries India Limited, a request that the Court accepted. Since then proceedings have continued against all three corporate defendants.

2: Madhya Pradesh High Court Order dated 30/03/05 in the case of  Alok Pratap Singh v. Union of India & Ors, W.P. No.2802 of 2004 (on file with the authors).

3: Ministry of Corporate Affairs, Government of India, Registry of Company or LLP Names, available at: www.mca.gov.in/DCAPortalWeb/dca/QueryNameAction.do (accessed 16 January 2014).

4: ‘Information on Bhopal’, available at www.evereadyindustries.com/pressroom/information-bhopal.asp (last accessed 17 December 2013). On the website, the Williamson Magor Group has stated that the present business of Eveready is manufacture and marketing of Fast Moving Consumer Goods and has no connection with the pesticides business of Union Carbide. “Needless to say, the Williamson Magor Group had no connections or involvement with the operations of the said pesticide plant at Bhopal. In fact, immediately following the accident, the plant at Bhopal was closed down permanently and all licenses were cancelled by the government. The Bhopal plant had ceased to be an asset in the books at the time of the acquisition of the shares by the Williamson Magor Group. Subsequently, the possession of the site of the plant was also taken over, unconditionally, by the State government in July 1998.”

5: Madhya Pradesh High Court Order dated 30/03/05 in the case of  Alok Pratap Singh v. Union of India & Ors, W.P. No.2802 of 2004 (on file with the authors). It had been attempted to serve notice on Dow through Dow Chemical International Private Limited

6: Press Information Bureau, government of India. Ministry of Chemicals and Fertilisers: Disposal of Toxic Waste at Bhopal, 5 August 2010, available at: pib.nic.in/newsite/erelease.aspx?relid=64168 (accessed 28 October 2013)

7: Aparna Pallavi, Nagpur Bench Stays Transfer Of Bhopal’s Toxic Waste, 17 December 2011 available at: www.downtoearth.org.in/content/nagpurbench-stays-transfer-bhopals-toxic-waste (accessed 28 October 2013)

8: The legal basis for this was Rule 16 of the Hazardous Wastes (Management and Handling) Rules 1989, enacted under the Environment Protection Act 1986, which provides that the occupier and operator of a facility is liable to restore any damage to the environment at their cost or alternatively, pay the entire cost of remediation and pay in advance an amount equal to the cost estimated by the State Pollution Control Board.

9: Department of Chemicals & Petrochemicals, Annual Report 2011-2012, available at: chemicals. nic.in/Annual%20Report%202011-2012.pdf (accessed 28 October 2013), p35 para 3.14.

10: Ministry of Environment and Forests, Bhopal environmental remediation oversight committee constituted, 7 July 2010, available at: www.indiaenvironmentportal.org.in/reports-documents/bhopal-environmental-remediation-oversight-committee-constituted (accessed 28 October 2013)

11: The decision provided that the waste would be removed within a year with the cost of airlifting the waste met by the Central government. Activists had expressed concerns that this plan did not address the accumulated soil and water contamination as toxic gases and chemicals had seeped into the surrounding soil and water supply for decades.

12: GIZ, Contaminated sites in India: Contract with GIZ did not materialise, 2012, available at: www.giz.de/en/mediacenter/8869.html (accessed 28 October 2013)

13: Writ Petition (Civil) No.50 of 1998 Bhopal Gas Peedith Mahila Udyog Sangathan & Ors v. Union of India & Ors with IA Nos 62-63 of 2011 In Civil Appeal Nos 3187 and 3188 of 1988, Order of the Supreme Court of 9 August 2012,at para 35 sub para. 12.

14: The Times of India, “Pithampur villagers oppose trial run for incineration of toxic waste”, The Times of India, 18 June 2013 available at: articles.timesofindia.

www.indiatimes.com/2013-06-18/indore/40048392_1_ toxic-waste-pithampur-tarpura (accessed 22 January 2014)

15: “That year [1998] the Madhya Pradesh state government, which owns and had been leasing the property to Eveready, took over the facility and assumed

all accountability for the site, including the completion of any additional remediation.” Statement of Union Carbide Corporation Regarding the Bhopal Tragedy, available at: www.bhopal.com/union-carbide-statements (accessed 28 October 2013). Similarly, The Dow Chemical Company states: “But responsibility for the clean-up of the Bhopal site lies with the Madhya

Pradesh state government, not with Dow or UCC.”  Q and A with respect to the government of India’s request for a Curative Petition related to the 1989 Bhopal Settlement, 28 February 2011.

16: “The Williamson Magor Group says that Eveready is neither responsible for the pollution as reported, nor is it liable for the clean-up of the hazardous material and that the obligation and liability of the clean-up, if any, should be that of the erstwhile owners of UCIL viz, UCC USA.” Eveready Industries India Ltd. Information on Bhopal, June 16 2010 available at: www.evereadyindustries.com/pressroom/information-bhopal.asp (accessed 28 October 2013)

17: Centre for Science and Environment, Action Plan: Environmental Remediation in and around UCIL, Bhopal, Expert Roundtable, April 25-26 2013, August 2013.

 

 

 

We believe Dow & DuPont must finally accept responsibility for Bhopal. Until then, The Bhopal Medical Appeal funds two award-winning clinics in the city. Both offer free, first-class care to victims of the gas disaster or the ongoing water contamination. The survivors have nowhere else left to turn – please help if you can.