Opinion & Debate

‘Beyond Belief.’
How Dow Chemical/ Union Carbide continue to evade criminal charges using the corporate veil.

Bhopal Disaster: Still Waiting for the Clean Up.
Report published on the eve of the 24th anniversary of the Bhopal Disaster bemoans the lack of effective clean-up action. Now, after contaminating all around it for over thirty years, the situation remains depressingly similar.

The Price of Life. Working at the Bhopal Factory.’
Speech given to UNISON Waltham Forest on International Workers’ Memorial Day 2015.


The Merger of Dow and DuPont: What Does it Mean for Bhopal?
On 31 August, 2017, a merger was completed between the Dow Chemical Company and DuPont to form a single chemical company, worth an estimated $130billion, known as DowDuPont.
The new company is expected to split into three publicly-traded companies: an agriculture business known as Corteva Agriscience: a materials science business, Dow, and a specialty products company to be called DuPont.

Union carbide has been a 100% owned subsidiary of Dow Chemical since 2001 and, according to Baskut Tuncak the UN’s special rapporteur on hazardous substances and wastes: “This merger creates yet another layer of legal hurdles for victims to arrive at any semblance of an effective remedy and accountability for a preventable disaster now more than 30 years old.”

Find out how BMA reported each story:

Dow Chemical Hides Dirty Linen From Investors Ahead Of DuPont Merger
Before special stockholders’ meetings at both Dow and DuPont, where a vote on the merger is to be held, we explain how the  companies were making inadequate or misleading disclosures in their respective joint merger proxy material with respect to contamination legacies.

EU Anti Competition Investigation
Text of BMA letter to Mrs. Margrethe Vestager, EU Competition Commissioner detailing ‘grave concern’ over issues concerning the proposed merger between Dow Chemical and DuPont’.

Bhopal Disaster Victims May Never Get Compensation Following DowDuPont Merger, Fears UN Official

A Toxic Merger UpdateMarch 3, 2017
Despite being under investigation by the EU, and still not approved by the US Securities and Exchange Commission, Dow’s website apparently reveals the merger as a done deal.

The Toxic Merger of Dow and DuPont – Update – 27 March 2017
EU gives ‘conditional approval’ to Dow DuPont merger.

EU Gives Go-Ahead to DowDuPont Toxic Mega-Merger – March 30, 2017

Toxic Merger Update – April 18, 2017

Toxic Merger – June 22, 2017
US Department of Justice approves merger

Further Trouble for Dow & DuPont Merger as Jury Awards $10.5m Punitive Damages in DuPont C-8 Case

Dow Chemical CEO To Retire Just as Supreme Court Says Contamination Disaster Spreading in Bhopal


 

Dow Chemical Hides Dirty Linen From Investors Ahead Of DuPont Merger – July 20, 2016

Dow Chemical
Before the special shareholder meetings for respective stockholders of Dow Chemical and DuPont today July 20, 2016, inadequate or misleading disclosures have been made in the companies’ joint merger proxy material.

Stockholders have been issued a joint proxy statement containing information on the proposals to be voted on. But Dow appears not to be respecting its fiduciary duties to shareholders- including disclosure of all facts material to the stockholders’ consideration.

These undisclosed items are substantial, material liabilities facing Dow as sole shareholder of Union Carbide- still embroiled in civil, criminal and environmental litigation regarding the legacy of the Bhopal Disaster- and which DuPont shareholders stand to inherit in the event the Dow/DuPont merger is consummated.

Potential impact of Dow’s Bhopal related liabilities:

•    LEGAL: Three court cases remain outstanding against Dow/ Union Carbide in India with claims amounting to billions of dollars in potential damages. The Indian Government’s official position is that the ‘gross inadequacy’ of the 1989 settlement with UCC resulted in an ‘irremediable injustice’ and is seeking additional compensation through a curative petition. If the petition succeeds a settlement of between $1.8– 8.1billion will be required. An outstanding criminal case has the potential for unlimited damages. See: NOTE 1.

•    OPERATIONAL:  Publicly available financial analysis, as documented in official, director-level, signed correspondence between Dow Chemical and the Government of India, states total business losses, for Dow Chemical in India between 2008 to 2016, to be estimated at $300 million. See NOTE 2.

•    REPUTATIONAL: The reputational impact of the Bhopal legacy upon Dow is measurable and material. Although Dow identified India as “a key component of its global business strategy and a significant potential contributor to Dow’s corporate growth and profitability” (Dow in India “Facts and Figures”, 2008), Dow has suffered numerous crippling setbacks in its efforts to invest in the country as a result of public protest and political engagement on Bhopal. See: NOTE 3.

Colin Toogood, Bhopal Medical Appeal spokesman said: “Dow Chemical withheld vital information, regarding Union carbide’s Bhopal related liabilities, from its SEC filings prior to the 2001 acquisition of Union Carbide and history seems to be repeating itself as Dow is, once again, concealing vital facts from investors. These are not trifling facts and would seem to already be costing Dow many millions with the potential for a vast, mutli-billion dollar hit should Dow be found against in the Indian courts”. See NOTE 4.

Rashida Bee, President of the BGPMSKS representing survivors of the Bhopal Disaster said: “Legally, company directors are duty bound to disclose all facts that are material to the stockholders’ consideration of a transaction. But DuPont shareholders have been kept in the dark about the criminal, civil and environmental liabilities of the Bhopal disaster that Dow Chemical has inherited through taking over Union Carbide.”  

Concerns have also been raised regarding DuPont’s undisclosed liabilities including potential damages from claims that a chemical used to make Teflon caused cancer and other ailments: CLICK

NOTE 1: Full briefing on Dow’s Bhopal related legal liabilities: http://bhopal.org/the-dow-chemical-companys-bhopal-related-legal-liabilities/

NOTE 2: The reputational impact of the Bhopal legacy upon Dow is measurable and material. Though India currently represents one of the world’s fastest growing markets for chemical products, and though Dow identified India as “a key component of Dow’s global business strategy and a significant potential contributor to Dow’s corporate growth and profitability” (Dow in India “Facts and Figures”, 2008), Dow has suffered numerous crippling setbacks in its efforts to invest in the country as a result of public protest and political engagement on Bhopal. Publicly available financial analysis, as documented in Dow Chemical-Government of India official director-level signed correspondence, states total business losses in India from 2008 to 2016 to be estimated at $300 million. For example, a proposed 50% / 50% joint venture between Dow and GACL for producing chloromethanes had to be cancelled in 2012.The Government of India, Ministry of Chemicals & Fertilizers, Department of Chemicals & Petrochemicals stated at the time “that until the Dow Chemical Company of whom the Dow Europe GMBH Switzerland is a subsidiary owns up responsibility for environmental remediation in Bhopal Gas Leak site disaster remediation, no proposals of investment should be considered favorably by Government of India.”[i] As a result of this cancellation, Dow realised losses of $17 million between 2011-13, and missed out on expected revenues of $283 million (expected revenue until 2016 was to be $565 million, with each partner receiving half[ii]).  Similarly, an intended R&D development at Pune, within which Dow planned to employ “500 high calibre scientists” at an investment of $100 million, had to be abandoned, with between $15 to $20 million written off. The abandonment was caused, according to India’s Minister for Chemicals and Fertilisers, by Dow’s refusal to accept responsibility for remediating the contaminated Bhopal plant site.[iii] The Director of Corporate Affairs at Dow Chemical India Private Ltd., Rakesh Chitkara, is quoted by U.S. Embassy officials as saying that the Dow had formerly intended to invest up to $5 billion in India by 2015. Officials concluded “that given the difficulties Dow has recently experienced, that level of investment looks extremely unlikely.”[iv] Returns upon the intended investment of $5 billion would have resulted in a materially significant percentage of the Company’s overall business and been reflected in current and future earnings. As Motley Fool observed in 2012, “Dow’s refusal to take responsibility for Bhopal has hit the company’s bottom line well beyond the associated legal costs. The unaddressed liability has hurt its reputation, resulted in protests and media backlash, and even limited its ability to invest overseas”[v]

[i] Office Memorandum, “Proposal for approval of foreign investment No.197/FC/2008 dated 02/0712008 – M/s Dow Europe GMBH Switzerland re.” Geeta Menon, Director, Ministry of Chemicals & Fertilizers, Department of Chemicals & Petrochemicals, Government of India, September 11, 2008.

[ii] “Proposal for setting up a joint venture with Gujarat Alkalies and Chemicals Limited to manufacture inter alia chloromethanes and for payment of technology fees”, DUA CONSULTING PRIVATE LIMITED on behalf of Dow Europe GmbH, July 1, 2008.

[iii] http://www.thehindu.com/news/the-india-cables/sops-forchemicals/article1588625.ece

[iv] “TWENTY-FIVE YEARS LATER, BHOPAL DISASTER NOW HAUNTS DOW CHEMICAL”, Unclassified cable, US consulate Mumbai, to US Secretary of State and others, June 22, 2009. Accessed at: https://wikileaks.org/plusd/cables/09MUMBAI265_a.html

[v] Pino, Isaac; Kannel, Charlie; Gardner, Tom. “How Dow Chemical Can End the Bhopal Tragedy.” Motley Fool.com. 07/27/2012. http://www.fool.com/investing/general/2012/07/27/how-dow-chemical-can-end-the-bhopaltragedy.aspx

NOTE 3: In 2012, the Bhopal disaster caused Dow reputational damage via its Olympics sponsorship. Governance Metrics International, an independent corporate governance research and ratings agency, called the resulting press “disastrous”. See pp6 : https://www.sec.gov/divisions/corpfin/cf-noaction/14a-8/2014/amnestyinternational031814-14a8.pdf

NOTE 4: The merger agreement between Dow and UCC denied outright UCC’s criminal liability in the Bhopal case. In fact, it denied that any pending criminal prosecution existed against UCC. Article V of the Merger Agreement 214 stated: “there are no (i) civil, criminal or administrative actions, suits, claims, hearings, investigations or proceedings pending or, to the actual knowledge of its executive officers, threatened against it or any of its Subsidiaries… except for those that are not, individually or in the aggregate, reasonably likely to have a Material Adverse Effect on it.” 214 Submitted with the Schedule 13D, as well as in other public filings before the Securities and Exchange Commission.


Text of letter to Mrs. Margrethe Vestager, EU Competition Commissioner:

I write on behalf of the Bhopal Medical Appeal, a UK registered charity which works closely with grassroots organisations in India representing survivors of the Bhopal Gas Disaster and which funds two innovative, free clinics in Bhopal helping the long-term injured, along with second and third generation sufferers. The purpose of this letter is to express our grave concern over issues concerning the proposed merger between Dow Chemical and DuPont.

Antitrust laws, and investigations thereunder, are fundamental in market economies as they serve to promote and maintain fair competition whilst preventing firms from distorting competition in a way that is detrimental to markets. Although we understand that in considering merger proposals the EU, much like the SEC in the US, focuses on competition issues and there is no obvious mechanism for examining a merger deal on human rights or international law grounds, we believe that certain human rights issues should be recognised as likely to engender unfair competition and, on that basis, accepted as integral to any anti-trust investigation.

It has become evident that both Dow and DuPont are attempting to conceal and/ or evade material liabilities which are of a potentially vast scale for each company, as a stand-alone entity, and there is good reason to believe that both companies hope to further evade these liabilities in the event of a successful merger. Though these liabilities have human & environmental rights implications, they are of sufficient scale that they would undoubtedly, when imposed, represent a significant portion of the combined value of the merged companies. To offset such a financial burden, or even just to appear to have done so, must represent a major competitive advantage for both companies and for the later merged entity, an advantage that will have been unfairly – or, quite possibly, illegally – gained.

Competitive advantage can be gleaned merely from concealing liabilities from potential investors. According to the Forum for Sustainable and Responsible Investment, in a 2014 report on U.S. sustainable, responsible, and impact investing (SRI) trends, the total US-domiciled assets under management using SRI strategies expanded from $3.74 trillion at the start of 2012 to $6.57 trillion at the start of 2014 and accounted for more than one out of every six dollars under professional management in the United States. The report also noted that the number and proportion of shareholder proposals on social and environmental issues that receive high levels of support has been trending upward and, on this basis, to conceal information of material concern to all investors, but of critical importance to those wishing to invest in a socially responsible manner and who control over 15% of the overall market, must be seen as gaining an unfair competitive advantage.

Prior to the July 20, 2016, special shareholder meetings for stockholders of Dow Chemical and DuPont, inadequate or misleading disclosures were made in the companies’ joint-merger proxy materials. Dow appears not to have respected its fiduciary duties to shareholders, including disclosure of all facts material to the stockholders’ consideration, with undisclosed items including material liabilities facing Dow as the sole shareholder of Union Carbide which is still embroiled in civil, criminal and environmental litigation regarding the legacy of the Bhopal Disaster.

Three court cases remain outstanding against Dow/ Union Carbide in India, with claims amounting to billions of dollars in potential damages:

  • Dow maintains that the 1989 civil settlement negotiated between Union Carbide and the Government of India (GoI) is ‘full and final’ but, in 2010, the GoI filed a Curative Petition in the Delhi Supreme Court seeking to remedy its inadequacies. Curative petition no. 345-347, of 2011, states that: “The present Curative Petition is an attempt by the Union of India to cure gross miscarriage of justice and perpetration of irremediable injustice being suffered by the victims of the Bhopal Gas Tragedy. It is submitted that the settlement compensation amount determined by this Hon’ble Court was based on certain factual assumptions which have been found to be completely incorrect and far removed from reality…” India seeks an additional amount in excess of $1 billion, whereas additional filings in support of the petition by impleaded parties request an additional $8.1 billion to address the original shortfall.
  • A criminal case against Union Carbide Corporation remains unresolved over three decades after the disaster and involves several serious charges including ‘culpable homicide not amounting to murder’. As a consequence of its refusal to attend court, Union Carbide has been proclaimed an ‘absconder’ by the Indian courts. Parent company Dow, which has not compelled its wholly-owned subsidiary’s appearance at trial, has itself ignored four notices to appear before the Bhopal criminal proceedings to explain the actions of that subsidiary. On July 13th, 2016, the court was moved to consider ex parte proceedings against Union Carbide. Under Indian law, criminal courts have the power to impose fines with no upper limit.
  • The unresolved issue of toxic ground and water contamination at the former Union Carbide plant site in Bhopal is still subject to litigation in the Madhya Pradesh High Court and Dow has been asked to provide a $15 million advance payment prior to determination of liability.

The reputational impact of the Bhopal legacy upon Dow, which identified India as “a key component of Dow’s global business strategy and a significant potential contributor to Dow’s corporate growth and profitability” (Dow in India “Facts and Figures”, 2008) can also be seen as having a material impact with its Indian divisions suffering numerous setbacks in their efforts to invest as a result of public protest and political engagement on Bhopal. Financial analysts have estimated the total business loss in India, from 2008 to 2016, to be as much as $300 million and, as Motley Fool observed in 2012, “Dow’s refusal to take responsibility for Bhopal has hit the company’s bottom line well beyond the associated legal costs. The unaddressed liability has hurt its reputation, resulted in protests and media backlash, and even limited its ability to invest overseas”

For its part, DuPont would seem to be attempting to evade liabilities relating to the contamination of drinking water with ammonium perfluorooctanoate, a carcinogenic chemical otherwise known as C-8 or PFOA, used in the production of Teflon.

Adjudication of injury cases resulting from C8 contamination has only just begun and a test-case last October, in which a woman who developed kidney cancer was awarded $1.5 million in compensation, was the first result of a class action involving over 3,500 plaintiffs. In July of this year DuPont was ordered to pay more than $5.5 million to a man who developed testicular cancer after drinking water polluted with the chemical. The jury imposed a further $500,000 in punitive damages after finding DuPont guilty of malice.

According to Bloomberg Intelligence, potential payments related to health claims from exposure to C8 could reach $1.9 billion whilst clean-up at the 174 polluted sites already disclosed could total $900 million. A further 19 sites are under review.

DuPont may face additional C8 lawsuits in the Netherlands after The Dutch Inspectorate for Social Affairs and Employment announced in June that the Public Prosecutor is officially investigating the use of hazardous chemicals at DuPont’s facility in Dordrecht, after testing revealed C-8 at levels as high as several thousand parts per billion in the blood of residents and workers in the region, a figure enormously beyond the US EPA limits.

Yet, just over a year ago, DuPont spun-off its ‘Performance Chemicals’ division into a separate company named Chemours, which took with it 62% of environmental claims ongoing against DuPont, including those deriving from C-8, along with $4 billion of existing debt. Chemours debt is only 20% less than that of DuPont, a company with 35x the market capitalisation and a 6x more favourable ratio of debt to earnings before interest, taxes, depreciation, and amortization, leading financial website Citron Research to describe the company, in a report from June 2nd, 2016, as “a bankruptcy waiting to happen”.

Though DuPont agreed to cover some of Chemours’ liabilities, the company admitted in regulatory filings that this may not be sufficient to cover them all. DuPont has claimed that Chemours is required to pay damages whilst, in July this year, Chemours indicated that it may fight efforts to force payment, saying it “retains legal defenses” to DuPont’s claims of indemnification. Suggesting that any bankruptcy would be held off until after the DowDuPont merger, Citron concluded Chemours to be “the most morally and financially bankrupt company that we have ever witnessed.”

Neither Dow nor DuPont have offered clarity to involuntary creditors on what will happen to existing liabilities in the aftermath of a merger that will also see DowDuPont split into three different entities within 18 months of the deal going through. It is inconceivable that this obfuscation, or evasion, of liability is not a matter of material consideration within the merger agreement discussions.

In conclusion, we accept that the issues we describe may be interpreted, by some, to be outside of the normal EU antitrust investigation remit but humbly request that their validity as issues material to a complete antitrust investigation is given proper consideration.


Bhopal Disaster Victims May Never Get Compensation Following DowDuPont Merger, Fears UN Official – September 15, 2017

The Abandoned Union Carbide Factory in Bhopal. Photo: Giles Clarke, Getty Images Reportage.

Baskut Tuncak, the United Nations Special Rapporteur on the implications for human rights of the environmentally sound management and disposal of hazardous substances and wastes, is ‘deeply concerned’ about the merger between Dow and DuPont, which could obstruct justice for victims of the world’s deadliest industrial disaster.

In an article in The Independent, Mr. Tuncak said: “This merger creates yet another layer of legal hurdles for victims to arrive at any semblance of an effective remedy and accountability for a preventable disaster now more than 30 years old.”

Read the article here: Bhopal disaster victims may never get compensation following Dow-DuPont merger, fears UN official

Sign our open letter to the board of DowDuPont and share our campaign: Don’t Bury Bhopal

#DontBuryBhopal

#DowDuPontCo


A Toxic Merger Update – March 3, 2017

A Toxic Merger Update

The controversial merger between Dow Chemical and DuPont remains fraught with issues. Despite being under investigation by the EU, Dow’s website seems to reveal that it sees the merger as a done deal since this year’s AGM, on an as-yet unspecified date, is purported to be taking place in Delaware- the home of DuPont’s HQ.

Elsewhere, DuPont has now made an offer to settle one of the most well-known C-8 contamination issues in Ohio, USA, which has the look of a smokescreen in front of what has the potential to blow-up into a much greater liability. In late January, we were reporting that trouble was brewing for the merger, thanks to DuPont’s C-8 liabilities: CLICK

Since then a $670.7 million settlement has been reached in principle to resolve the C8 lawsuits connected with the contamination emanating from DuPont’s Washington Works plant in Wood County, Ohio. This settlement, if agreed, would include the three cases previously tried in a federal court which have each received awards running in to the millions of dollars. This makes the $670m  proposed settlement sound like an extremely paltry amount given the 3,500 cases in the class action seeking damages from their exposure.

The settlement also has the look of a tactic designed to deflect attention away from other C-8 contamination issues with the potential to carry vast liabilities. There are known to be serious issues with C-8 contamination elsewhere in the US, as well as in the Netherlands and in other countries, and the issue has something of the look of a ticking time-bomb about it.

A useful blog post on worldwide C-8 contamination issues: CLICK


The Toxic Merger Of Dow And DuPont – Update – 27 March 2017

TOXIC DowDuPont

Update: 27 March 2017. EU gives ‘conditional approval’ to Dow DuPont merger.

While the proposed merger between Dow Chemical and DuPont remains stalled, under investigation by the EU on the grounds of ‘anti-trust’, other concerns have been raised not least those surrounding the apparent attempts, by both companies, to see the back of potentially vast liabilities connected with contamination legacies.

DuPont, C8 and “A Bankruptcy Waiting to Happen”

DuPont would seem to be attempting to evade liabilities relating to the contamination of drinking water with ammonium perfluorooctanoate, a carcinogenic chemical otherwise known as C-8 or PFOA, used in the production of Teflon.

Adjudication of injury cases resulting from C8 contamination has only just begun and a test-case last October, in which a woman who developed kidney cancer was awarded $1.5 million in compensation, was the first result of a class action involving over 3,500 plaintiffs. In July of this year DuPont was ordered to pay more than $5.5 million to a man who developed testicular cancer after drinking water polluted with the chemical. The jury imposed a further $500,000 in punitive damages after finding DuPont guilty of malice.*

According to Bloomberg Intelligence, potential payments related to health claims from exposure to C8 could reach $1.9 billion whilst clean-up at the 174 polluted sites already disclosed could total $900 million. A further 19 sites are under review.

DuPont may face additional C8 lawsuits in the Netherlands after The Dutch Inspectorate for Social Affairs and Employment announced in June that the Public Prosecutor is officially investigating the use of hazardous chemicals at DuPont’s facility in Dordrecht, after testing revealed C-8 at levels as high as several thousand parts per billion in the blood of residents and workers in the region, a figure enormously beyond the US EPA limits.

Yet, just over a year ago, DuPont spun-off its ‘Performance Chemicals’ division into a separate company named Chemours, which took with it 62% of environmental claims ongoing against DuPont, including those deriving from C-8, along with $4 billion of existing debt. Chemours debt is only 20% less than that of DuPont, a company with 35x the market capitalisation and a 6x more favourable ratio of debt to earnings before interest, taxes, depreciation, and amortization, leading financial website Citron Research to describe the company, in a report from June 2nd, 2016, as “a bankruptcy waiting to happen”.

Though DuPont agreed to cover some of Chemours’ liabilities, the company admitted in regulatory filings that this may not be sufficient to cover them all. DuPont has claimed that Chemours is required to pay damages whilst, in July this year, Chemours indicated that it may fight efforts to force payment, saying it “retains legal defenses” to DuPont’s claims of indemnification. Suggesting that any bankruptcy would be held off until after the DowDuPont merger, Citron concluded Chemours to be “the most morally and financially bankrupt company that we have ever witnessed.”

Dow & Bhopal: See No Evil, Hear No Evil.

Prior to the July 20, 2016, special shareholder meetings for stockholders of Dow Chemical and DuPont, inadequate or misleading disclosures were made in the companies’ joint-merger proxy materials. Dow appears not to have respected its fiduciary duties to shareholders, including disclosure of all facts material to the stockholders’ consideration, with undisclosed items including material liabilities facing Dow as the sole shareholder of Union Carbide which is still embroiled in civil, criminal and environmental litigation regarding the legacy of the Bhopal Disaster.

Three court cases remain outstanding against Dow/ Union Carbide in India, with claims amounting to billions of dollars in potential damages:

  • Dow maintains that the 1989 civil settlement negotiated between Union Carbide and the Government of India (GoI) is ‘full and final’ but, in 2010, the GoI filed a Curative Petition in the Delhi Supreme Court seeking to remedy its inadequacies. Curative petition no. 345-347, of 2011, states that:

“The present Curative Petition is an attempt by the Union of India to cure gross miscarriage of justice and perpetration of irremediable injustice being suffered by the victims of the Bhopal Gas Tragedy. It is submitted that the settlement compensation amount determined by this Hon’ble Court was based on certain factual assumptions which have been found to be completely incorrect and far removed from reality…”

India seeks an additional amount in excess of $1 billion, whereas additional filings in support of the petition by impleaded parties request an additional $8.1 billion to address the original shortfall.

  • A criminal case against Union Carbide Corporation remains unresolved over three decades after the disaster and involves several serious charges including ‘culpable homicide not amounting to murder’. As a consequence of its refusal to attend court, Union Carbide has been proclaimed an ‘absconder’ by the Indian courts. Parent company Dow, which has not compelled its wholly-owned subsidiary’s appearance at trial, has itself ignored five notices to appear before the Bhopal criminal proceedings to explain the actions of that subsidiary. On July 13th, 2016, the court was moved to consider ex parte proceedings against Union Carbide. Under Indian law, criminal courts have the power to impose fines with no upper limit. Update: Dow Company Secretary, Ms. Amy Wilson, issued summons directly by email from Bhopal Chief Judicial Magistrate’s Court. Ms. Wilson did not attend court.
  • The unresolved issue of toxic ground and water contamination at the former Union Carbide plant site in Bhopal is still subject to litigation in the Madhya Pradesh High Court and Dow has been asked to provide a $15 million advance payment prior to determination of liability.

As with Chemours, the possibility of bankruptcy also hangs over Union Carbide. Claims in the Bhopal civil petition alone are several billion dollars over Carbide’s book value and the criminal court has the power to impose fines and penalties with no upper limit but, in the event that court awards overwhelm it, Dow, as chief creditor, would have a first-priority claim on Carbide’s assets.

Neither Dow nor DuPont have offered clarity to involuntary creditors on what will happen to existing liabilities in the aftermath of a merger that will also see DowDuPont split into three different entities within 18 months of the deal going through. It is inconceivable that this obfuscation, or evasion, of liability is not a matter of material consideration within the discussions over a merger agreement of this size.

* For update and further damage awards news: CLICK


EU Gives Go-Ahead To DowDuPont Toxic Mega-Merger – March 30, 2017

TOXIC DowDuPont

The EU has now approved the controversial merger between Dow Chemical and DuPont which, according to Friends of the Earth, has serious implications for future food safety.

Adrian Bebb, a Friends of the Earth spokesperson, said: “This merger will mean a lack of choice for farmers and a lack of diversity in our fields. We rapidly need to diversify our farming to adapt to a changing climate, and having less seeds controlled by fewer corporation raises serious questions about our ability to feed future generations.”

Other concerns have been raised over what appear to be attempts, by both companies, to see the back of potentially vast liabilities connected with their respective contamination legacies- in the case of Dow, Bhopal, and for DuPont, C8 (or PFOA), a toxin used in the manufacture of Teflon.

Since announcing the merger, both companies have withheld critical information from shareholders regarding Bhopal liabilities pending against Dow subsidiary Union Carbide. Unresolved monetary claims are several billion dollars over Carbide’s book value in the Bhopal ‘curative’ civil petition alone. The outstanding criminal manslaughter case has the potential for fines and penalties with no upper limit: Dow has now been summoned on five occasions to explain why Union Carbide has not once attended court to face the charges.

Although DuPont recently made an offer to settle one of the most well known C-8 contamination issues in Ohio, USA, there remain numerous other C-8 cases, in the USA and elsewhere, leaving the potential for a much greater liability.

More detail : CLICK

Brussels is expected to clear a merger between Syngenta and ChemChina within the next two weeks, with further approval of a similar tie-up between Monsanto and Bayer expected later in the year.

How the rush for mega-mergers puts food security at risk: CLICK


Toxic Merger Update – April 18, 2017

The controversial merger between Dow Chemical and DuPont was granted conditional approval by the EU on March 27th, paving the way for a deal later this year, despite concerns being raised over apparent attempts to conceal vast liabilities connected with their respective contamination legacies.1-7

After announcing the merger, both companies withheld critical information from shareholders regarding Bhopal liabilities pending against Dow subsidiary Union Carbide. But, unresolved claims in the forthcoming ‘curative’ civil petition alone, aiming to address inadequacies within the 1989 civil settlement, amount to several billion dollars over Carbide’s total book value. In addition, the outstanding criminal manslaughter case has the potential for fines and penalties with no upper limit and Dow has been summoned on five occasions to explain why Union Carbide has never attended court to face the charges.

In the case of DuPont, C8 (or PFOA), a toxin used in the manufacture of Teflon remains a major issue despite DuPont recently making a $670.7 million offer to settle C8 lawsuits connected with contamination emanating from its Washington Works plant in West Virginia. This settlement, if agreed, would include three cases previously tried in a federal court which each received awards running in to the millions of dollars. This makes the $670m proposed settlement look an extremely paltry amount given the 3,500 cases in the class action seeking damages.

Elsewhere, there are known to be serious issues with C-8 contamination around the US, as well as in the Netherlands, Korea, Australia and other countries. In fact, C8 contaminates every continent and country on the globe, and has been detected in the Pacific Ocean and other bodies of water, where the largest concentrations are in the top surface levels.

After the merger, the new company will be split into three and there is real concern as to where the Bhopal and C8 liabilities will lie. In so far as Dow and Bhopal is concerned, Dow has contrived to maintain a corporate veil between itself and Union Carbide as its chief protection from Carbide’s liabilities- although even that has come into question after the Chief Judicial Magistrate in Bhopal summonsed Dow Directly. But, there has been no statement from Dow as to what form Union Carbide may take, nor where it may sit among the three new entities, and this would only seem to suggest further complication before Union Carbide is ever held to account for its actions.

BMA letter to EU competition commissioner outlines apparent attempts by both companies to evade liabilities: CLICK

Further detail on Dow’s Bhopal liabilities and DuPont’s C8 liabilities: CLICK

  1. Affadavit of Phillip Lochner Concerning the Availability of Assets After Implementation of Merger Agreement Between Dow Chemical Company and E.I. DuPont Nemours & Co. July 27,29017 “The fact that since its merger with UCC, Dow has failed to disclose any potential liability with regard to the Bhopal Disaster in its SEC filings may imply a differential treatment of First World and Developing World liabilities.” Bhopal Expert Opnion – Final – Notarized
  2. AGREEMENT AND PLAN OF MERGER by and among THE DOW CHEMICAL COMPANY, DIAMONDORION HOLDCO, INC., DIAMOND MERGER SUB, INC., ORION MERGER SUB, INC. and E. I. DU PONT DE NEMOURS AND COMPANY, dated as of December 11, 2015. This document contains no mention of Bhopal liabilities. Merger Agreement
  3. Amendments to Merger Agreement, March 31, 2017. This document contains no mention of Bhopal liabilities. Merger agreement amendment March 31 2017
  4. Dow/ DuPont S4 Registration Statement. This document contains no mention of Bhopal liabilities. Dow-Dupont-filed-S4-3-1-2016
  5. Dow/ DuPont S4 Registration Final Presentation. This document contains no mention of Bhopal liabilities. S-4-Presentation-FINAL
  6. Dow/ DuPont Spin Off Document. This document contains no mention of Bhopal liabilities. Spin Off Document
  7.  DowDuPont Inc FORM 8-K Completion of Acquisition or Disposition of Assets. This document contains no mention of Bhopal liabilities. Dowdupont 8k 01.09.2017

 

Toxic Merger – June 22, 2017

Six of the world’s largest chemical companies are about to merge and create three new mega-corporations. They will control much of the world’s food supply, promoting sterile crops grown in a barren landscape, soaked in dangerous pesticides.

Dow Chemical will merge with DuPont to create one of these new chemical juggernauts later this summer. The EU granted conditional approval to the merger back in March, after an anti-trust investigation, and now the US Department of Justice also says it will permit the merger to proceed. DuPont must agree to divest certain parts of its crop protection portfolio, and Dow divest its global ethylene acrylic acid copolymers and ionomers business

But, this is all despite concerns being raised over apparent attempts, by both companies, to conceal vast liabilities connected with their respective contamination legacies.

After announcing the merger, both companies withheld critical information from shareholders regarding Bhopal liabilities pending against Dow subsidiary Union Carbide. But, unresolved claims in the forthcoming ‘curative’ civil petition alone, aiming to address inadequacies within the 1989 civil settlement, amount to several billion dollars over Carbide’s total book value. In addition, the outstanding criminal manslaughter case has the potential for fines and penalties with no upper limit and Dow has been summoned on five occasions to explain why Union Carbide has never attended court to face the charges.

In the case of DuPont, C8 (or PFOA), a toxin used in the manufacture of Teflon remains a major issue despite DuPont recently making a $670.7 million offer to settle C8 lawsuits connected with contamination emanating from its Washington Works plant in West Virginia. This settlement, if agreed, would include three cases previously tried in a federal court which each received awards running in to the millions of dollars. This makes the $670m proposed settlement look an extremely paltry amount given the 3,500 cases in the class action seeking damages.

Elsewhere, there are known to be serious issues with C-8 contamination around the US, as well as in the Netherlands, Korea, Australia and other countries. In fact, C8 contaminates every continent and country on the globe, and has been detected in the Pacific Ocean and other bodies of water, where the largest concentrations are in the top surface levels.

Worse still, recently emerging stories suggest that, once DuPont finished using C-8, it moved on to another toxic chemical, known as GenX, and continued dumping it in rivers: CLICK Little data exists on the health effects of GenX, but scientists who have reviewed the few studies available say it may pose many of the same risks as C8: CLICK

After the Dow Dupont merger, the new company will be split into three and there is real concern as to where the Bhopal and C8 liabilities will lie. In so far as Dow and Bhopal is concerned, Dow has contrived to maintain a corporate veil between itself and Union Carbide as its chief protection from Carbide’s liabilities- although even that has come into question after the Chief Judicial Magistrate in Bhopal summonsed Dow Directly. But, there has been no statement from Dow as to what form Union Carbide may take, nor where it may sit among the three new entities, and this would only seem to suggest further complication before Union Carbide is ever held to account for its actions.

BMA letter to EU competition commissioner outlines apparent attempts by both companies to evade liabilities: CLICK

Further detail on Dow’s Bhopal liabilities and DuPont’s C8 liabilities: CLICK


Further Trouble For The Dow & DuPont Merger As Jury Awards $10.5m Punitive Damages In DuPont C-8 Case – January 25, 2017

Keep Ypur Promises DuPont

Problems would seem to be mounting for the proposed merger between Dow Chemical and DuPont as a US jury recently awarded $10.5 million in punitive damages against DuPont in a C-8 contamination case.

On the 6th January, 2017, a jury in Columbus, Ohio, awarded plaintiff Kenneth Vigneron $10.5 million in punitive damages for the DuPont’s conscious disregard for the plaintiff’s health. The punitive damages are awarded in addition to the $2 million in compensatory damages awarded by the same jury on December 21, 2016.

Keep Your Promises DuPont advisor Harold Bock said: “DuPont’s decades-long, dangerous history with Teflon is finally starting to stick. As we look to the New Year, with 40 trials coming up in 2017 and pressure on DuPont to negotiate a global settlement, yet another punitive award, this time for Kenneth Vigneron, exponentially drives up the price tag of a settlement”

Not only does the legacy of C-8 represents a substantial, material liability for DuPont which existing Dow shareholders stand to inherit in the event of the merger being approved but, given the forthcoming trials and various investigations of C-8 contamination elsewhere, not least in the Netherlands, any potential investors for the proposed new DowDuPont behemoth must be seriously questioning whether it represents a sound investment.

Read more about both DuPont and Dow’s liabilities which the respective companies seem to be attempting to conceal from investors ahead of their proposed merger: CLICK


Dow Chemical CEO To Retire Just As Supreme Court Says Contamination Disaster Spreading In Bhopal – March 12, 2018

As the Indian Supreme Court acknowledges the contamination disaster in Bhopal to be spreading,1 the long-standing CEO of Dow Chemical, the corporation adjudged responsible by campaigners, is to step down.2

In 2017, Dow merged with DuPont to create the world’s largest chemical corporation and a high-level UN Official voiced serious concern about the merger explaining it could obstruct justice for victims of the world’s deadliest industrial disaster in Bhopal.3

For the victims and survivors of the Bhopal tragedy– and their supporters in India and around the world– Andrew Liveris legacy is indifference and inaction: indifference to their suffering; inaction in the face of injustice.

When Dow acquired Union Carbide, it acquired the Bhopal problem; as Dow has become DowDupont Co and restructures itself further, it will continue to pay the price in billions of dollars of lost business opportunity in India, where the memory of the tragedy will be kept alive until action is taken and justice is done.4

It is now up to the new CEO Jim Fitterling– and the board together with the shareholders of DowDupont: act to compensate the victims and remediate the site; or pay a steeper price as every year passes and the contamination spreads further. 

1: On March 8, a division bench of Supreme Court judges asked the Bhopal Municipal Corporation (BMC) to arrange a safe, piped water supply to five further communities impacted by toxic contamination of the groundwater they use as their primary supply.

This brings the number of affected colonies acknowledged by the SC to 27 while the Bhopal Group for Information & Action (BGIA), a member of the monitoring committee appointed by the Supreme Court, states that 42 colonies are affectedhttps://timesofindia.indiatimes.com/city/bhopal/dumped-toxic-waste-from-defunct-carbide-plant-affects-20-more-areas/articleshow/63243525.cms

The contaminated water results from toxic chemicals leaching into the groundwater from chemical waste abandoned by Dow subsidiary Union Carbide. Detailed contamination briefing: http://bhopal.org/water-contamination-briefing/

2: Andrew Liveris to step down as DowDuPont executive chair. Financial Times: https://www.ft.com/content/ae7b81cc-25dc-11e8-b27e-cc62a39d57a0

3: Baskut Tuncak, United Nations Special Rapporteur on the implications for human rights of the environmentally sound management and disposal of hazardous substances and wastes: “This merger creates yet another layer of legal hurdles for victims to arrive at any semblance of an effective remedy and accountability for a preventable disaster now more than 30 years old.” Bhopal disaster victims may never get compensation following Dow-DuPont merger, fears UN official

4(i): Submissions to the SEC by shareholders in March 2014 demonstrated substantial material omissions in Dow’s assertion of no financial, operational or reputational impact due to Bhopal disaster-related issues.

Shareholders provided proof that three significant business deals, and a $5 billion investment plan, were impeded in India due to Bhopal.

They also demonstrated that the reputational impact upon Dow has been global and has had increasing effects, leading to a major fall in brand rating and putting Dow in the top 20 corporations targeted by activists globally. Co-filers issued press statements about the exclusion of the resolution before Dow’s 2014 AGM: Press Statement, Calvert Investments & Dow Blocks Amnesty International Calls To Face Up to the Toxic Legacy of Bhopal & Dow Shields Shareholders From Toxic Truth in Bhopal

4(ii): Proposed Dow Chemical Shareholder Resolutions Highlight Investment Problems in India for Dow. More detail: http://bhopal.org/dow-shareholder-resolutions-calvert-investments/



 


Beyond Belief.

Dow Confidental

Image: Courtesy Reuters (c)

To keep coming back to the notion that you acquire a company where there is a bright line on the liability that was settled way beyond your time, and to hook you in to that event, it’s beyond belief that people are still trying that.’ Andrew Liveris, CEO of Dow Chemical, quoted by Bloomberg, March 1, 2012

Since December 1st 1987, Union Carbide has flouted every summons sent to request its attendance at trial, stating that, as a U.S. company, it does not accept India’s jurisdiction over it. Dow Chemical, current owner of Union Carbide, chooses not to present it to the courts. BMA Executive Trustee, Tim Edwards, explains:

The Dow Chemical Company knew exactly what it was getting when it swallowed Union Carbide Corporation.

Following completion of the $8.1 billion merger – a process which took 18 months – Dow officials claimed to have conducted an “exhaustive assessment”. But even a five minute browse of the internet would have discovered unaddressed mass homicide charges sticking pertinaciously to the one-time Fortune 500 multinational, charges from which it had already been on-the-lam for 9 years.

Dow executives didn’t have to depend upon their own handsomely paid lawyers to warn of the dangers. As soon as news of the planned takeover emerged, Bhopal survivor organisations wrote to Dow’s headquarters counselling that the company would be in the crosshairs if the merger went ahead.

The following spring, a court action by Dow shareholder Martin Statfeld observed that the two companies were withholding information concerning Carbide’s criminal and environmental liabilities from regulatory authorities in the U.S. and worried that they would eventually become Dow’s. Every member of Dow’s board was named in the action, which was successfully thwarted – on a technicality – by Dow’s lawyers.

The company’s AGM took place a few days after this suit was filed, in May 2000. Responding to shareholder questions, Dow’s Chairman Frank Popoff acknowledged that “the [Union Carbide] case has been reopened to some degree” in India and admitted that Dow was worried about double jeopardy. “That’s a tough question, one that we’ll have to deal with.”

Dow has been dealing with tough questions ever since, and no amount of disingenuousness has so far helped it answer them. However, few are aware that Union Carbide’s gassing of the Indian city of Bhopal was first a criminal justice issue, or that it remains so today. If medals were awarded for shameless cover-ups, Dow’s senior officials would by now be festooned with them.

Dow Chemical Bhopal

Bodies Arrive at The Mortuary.
Photo: Kamlesh Jamini ( Jamini Photo Studio Bhopal )

The Gassing of Bhopal

The world’s worst industrial disaster began at an ultra-hazardous, under-designed and poorly maintained Union Carbide pesticides factory on the evening of December 2nd, 1984 when a large amount of water and contaminants mixed with over 40 tons of the highly reactive, volatile and toxic chemical methyl isocyanate (MIC). A rapid runaway exothermic reaction ensued.

Shortly after midnight, approximately 27 tons of MIC gas and other reaction products jetted from the top of a high smokestack, spread out, and drifted down close to the ground in a dense cloud that was carried by prevailing winds straight into the heart of Bhopal city, whose central train station lay less than a mile from the factory. Carrying an exposure threshold limit of 0.02 parts per million, MIC is five times more lethal than WWI chemical weapon phosgene[i] and 500 times more dangerous than hydrogen cyanide.[ii] Dispersion calculations indicate that MIC drifted at concentrations between 3000 and 10 parts per million for up to 3.5 miles from Carbide’s factory during the gassing of Bhopal.[iii]

Gas survivor and justice campaigner Rashida Bee described the night of terror:

Everyone was running all over the place shouting, “Run away, we will all die”… When we reached Pokhta Bridge our eyes had got swollen and we had so much trouble in our lungs that it felt as if someone had lit a fire in our body… Our eyes started to black out and we found it very hard to breathe… We could hear voices around us saying ”O God, please grant us death”. That day, death appeared desirable.

Evidence collected by Amnesty International suggests that, over the next 72 hours, at least 8,000 – 10,000 people were killed, with children and the elderly suffering the most. The chief cause of immediate death was pulmonary oedema, whereby victims were drowned by fluid produced within their own lungs. Other observed effects were bronchial and nasal lesions, heart attack, spontaneous abortion, blindness, racking cough, concussion, paralysis and signs of epilepsy.[iv]

By the time the gas had dispersed some 573,000 people had been exposed. Local emergency services were overwhelmed. Over the course of the first day, 20,000 people were treated in the 1,000 bed Hamidia Hospital alone. The inundation led to corpses of the dead being stacked “one on top of another like they were bags of wheat.[v]

According to subsequent medical research, highly elevated rates of morbidity and mortality continue in the affected communities to this day, three decades later. [vi] There is a long-term prevalence of ocular and respiratory illnesses[vii]such as early age cataracts, diminished vision, breathlessness, persistent cough and chronic obstructive airways disease.[viii] MIC also entered the bloodstream, causing multi-systemic injuries to organs within the body.[ix] Chromosomal aberrations have been discovered, leading to expectation of cancers and the possibility of birth defects.[x] Gynaecological disorders such as uterine bleeding have been observed[xi], along with high levels of reproductive disorders. Neurological and neuromuscular affects, such as body aches, tingling in limbs, dizziness and loss of motor control, are common symptoms of gas exposure. [xii] Immunological impacts[xiii] have led to diseases such as tuberculosis manifesting at three times the national average.[xiv] Anxiety, memory loss and depression are regularly observed psychiatric effects.[xv] Evidence of second generational effects is now firmly established: some boys born to gas-affected parents suffer growth retardation, whereas hormonal chaos has afflicted girls. [xvi]

Dow Clean Up Bhopal

Crime without punishment

Crime No.1104/84 was registered, suo moto, by a Bhopal Police Station House Officer on December 3, 1984[xvii], less than 24 hours after the onset of the disaster, whilst hundreds of corpses still lay scattered across the old city.

Following a three year investigation by India’s Interpol unit, Union Carbide Corporation was formally charged with culpable homicide not amounting to murder – the equivalent of criminally negligent homicide in U.S. law – amongst other serious criminal charges. A series of summonses and arrest warrants were issued.

Shortly after the trial began, an Indian court dealing with responsibility for civil claims found that “it has to be held as having been more than prima facie established that it was the defendant UCC which had real control over the enterprise carrying on the particular hazardous and inherently dangerous industry at the Bhopal plant”.

Subsequent discoveries reveal that UCC directed four different phases of cost-cutting in Bhopal in order to retain its controlling stake of 50.9 percent in UCIL. As one example, $780,000 was saved changing MIC production from “continuous processing” to “batch processing”. The change necessitated storing enormous quantities of this highly volatile and deadly chemical for months on end, effectively creating the conditions that led to the disaster.

However, since December 1st 1987, Union Carbide has flouted every summons sent to request its attendance at trial, stating that, as a U.S. company, it does not accept India’s jurisdiction over it. Given that this stance is taken in defiance of basic tenets of international criminal law, the company’s position seems to be that it stands above and beyond the law.

Union Carbide was declared a fugitive from justice over 22 years ago and remains at large today. The outlaw Jesse James, whose notoriety echoes through history, spent 16 years on-the-hoof from the law. James was believed to have been implicated in the deaths of approximately 24, 984 less human beings than Union Carbide.

Sixty percent of Union Carbide’s time on the run from the rule of law has been as a wholly-owned subsidiary of Dow Chemical.

Dow Chemical criminal case

Wanted! The Chemical Brothers. Union Carbide has never answered the outstanding criminal charges.

Now you see Carbide, now you don’t

“From day one we started to plan for the close of Carbide” said Dow Chemical CEO Michael Parker in June 2001, after Dow and Union Carbide merged in a deal in which all Carbide’s shares “shall no longer be outstanding, shall be cancelled and retired and shall cease to exist”. Parker also talked of over 300 “integration projects” which would serve to spread UCC’s assets over Dow’s eight global business units. Thus, Carbide would be absorbed into Dow, thousands of staff would be laid off and Carbide’s trademark name would vanish.

The new arrangement was summarised by Dow’s Head of Communications in an internal message to employees of the former Union Carbide and the new Dow:

“All business activities are done under the umbrella of a Dow business. We face the market as Dow. Reporters will be tempted to keep talking about Union Carbide. But we should discourage reporters from using the words Union Carbide, unless it’s reference to a historical activity. There should be no need for a trade press reporter to refer to Union Carbide, as we face the market as Dow. They should not call a product a ‘Union Carbide product’. All products are sold as Dow products now. Any current or future activity of a business is done as Dow.”

 

Dance of the Corporate Veils

A decade later, however, Dow’s entirely contradictory position is that “Dow and UCC are separate companies”.

Summoned to answer a gas disaster claims case in the Supreme Court of India, Dow complained that the suit had been brought against it due to “an erroneous assumption that UCC has merged into Dow.” Instead, Dow deposes Union Carbide to be an “independent corporate entity”, with Dow itself a mere “shareholder”.

As reports are filed in its name with financial regulators in the US, Union Carbide does still appear to exist as a ‘legal entity’. But while US financial accounting standards require that the various “operating segments” of a corporation report results separately, Union Carbide’s regulatory filings declare that it is unable to comply since “Union Carbide Corporation’s business activities comprise components of Dow’s global operations rather than stand-alone operations . . . there are no separable reportable business segments for Union Carbide.”

So if Union Carbide is not functionally separate from Dow, what kind of entity is it?

The 2001 deal with UCC was termed a ‘merger’ within Dow’s own public statements. To merge is to “combine to form a single entity”. Due to the merger, shareholders in Dow became shareholders in UCC; UCC shareholders became Dow shareholders. All assets and liabilities of both companies were combined using ‘pooling of interests’ into one consolidated account. Union Carbide’s pre-existing debts and obligations became registered as charges upon the corporation’s consolidated accounts; this fact was borne out on January 9th, 2002, when the settling of an asbestos suit filed against Union Carbide in Texas, knocked over $7 billion from Dow’s own share price.

Union Carbide declares itself to be principally a Texan business to India’s courts. But the New York Registrar of Corporations, where the company has been listed for almost a hundred years, reveals its head office to be Midland, Michigan, where Dow also happens to have its head office.

Tax filings in Texas detail the company’s officers and board directors. Almost every single Union Carbide board director listed since the merger is either based 1,137 miles away in Midland, Michigan or is an acting Dow manager, or both. Every year since the merger, Union Carbide’s CEO and Chairman has been, without exception, simultaneously a Dow manager.

When Courts are asked to ‘lift the corporate veil’ between companies they apply a number of tests to discern the substantive reality behind the corporate form. One of those tests seeks to establish who benefited from the change in form. Since Dow announced the merger with Union Carbide, sales have risen 150% to stand at $57 billion annually. Union Carbide’s annual sales began at $6.5 billion in 2001, and are declared to be $6.9 billion in 2014. Of these sales, 98% are now direct to Dow itself.

Of the various means for piercing the corporate veil between different segments of a corporation the most powerful is the charge of fraud and abuse of the corporate form.

Court submissions discovered by Bhopal campaigners reveal that throughout the 1990’s, and unable itself to sell directly due to the unresolved criminal matter, Union Carbide employed a third party to distribute its products within India and thereby avoid a property attachment order intended to force its attendance at trial.

Following the merger, the pre-existing contractual relationship with the third party presented Dow’s Indian holdings with a business dilemma. Dow considered distributing Union Carbide produced goods in India directly, thereby using Dow’s own ‘separate’ corporate identity to enable Union Carbide to evade criminal trial. In April 2001, an employee of Dow Chemical Pacific outlined the proposed solution: “[p]resuming the product ships directly from USA to India, my suggestion is to selling the product under Dow legal entity with Dow label and document will be a good way to proceed.”

A year after the merger, Dow cancelled the contract with the third party and took over all trade in Union Carbide products in India.

Dow informs Indian courts that these are bought in “fair value transactions” outside of India and are therefore not Union Carbide property when in the country.

Dow Chemical

Dealing with Double Jeopardy

Union Carbide was a fugitive when Dow merged with it and is a fugitive now. If Dow is not Carbide, then Dow is harbouring a fugitive, a distinct offence under Indian law. If Dow is Carbide, Dow is also a fugitive.

Which is it to be?

When the criminal court attempted to answer this question in 2004, Dow India informed the court that it had “no nexus” with either Dow Michigan or Union Carbide. In 2005 the court issued a summons to Dow Michigan. Shortly after, Dow India applied for a freeze on the summons, arguing that Dow Michigan had “no nexus” with Union Carbide. The court granted the freeze, which remained in place until October 2012. Dow Michigan has now been ordered to attend court in November 2014 and explain the whereabouts of its absent subsidiary.

Not content with obstructing legal process by a dizzying use of multiple corporate forms, Dow managers sought to force Indian Ministers, including the Prime Minister, to intervene in legal proceedings and end legal pursuit of Bhopal liabilities against “non-Indian companies”. Bilateral US-India trade organisations and US officials were employed to lever additional pressure, and a one billion dollar investment programme was made conditional upon Indian complicity in getting Dow off the hook. The scheme failed after right-to-information work by Bhopal survivor groups exposed the whole farrago.

The failure of Dow’s extra-judicial attempts to end legal proceedings against it in India have had a disastrous effect on its plans to invest in South Asia. In spring 2014, Dow managed to exclude a shareholder resolution on Bhopal by arguing that its statements asserting that Bhopal was causing no financial, operational or reputational impact upon it amounted to an open and complete response to its stakeholders. Though shareholders presented irrefutable evidence of the increasing financial, operational and reputational impact of Bhopal upon Dow, Dow management excluded the resolution 2014 proxy materials. A record of the battle between shareholders and Dow can be found on the SEC website: http://www.sec.gov/divisions/c…

In summary, shareholders presented the following findings to the SEC:

  1. Bhopal has prevented Dow from pursuing a $5 billion strategic investment in India, whose specialty chemical sector is predicted to grow 17% annually and become the 4th largest market globally over the next decade.
    2. Dow’s own documents show that the company has lost at least $300 million in India between 2008-2016 due to Bhopal.
    3. The Bhopal legacy has caused Dow’s Core Brand rating to fall 300% in six years, during which time Dow has made it into the top 20 corporations targeted by activists globally.
    4. Yet management continues to mislead shareholders and regulatory authorities by denying that Bhopal is causing any financial, operational or reputational impact upon the company.

14 years after UCC merged into Dow, the strategy adopted to deal with the question of jeopardy remains the same. It arguably involves harbouring a fugitive; obstructing justice; becoming an accessory after the fact; subverting legal orders; backroom dealing; drawing the corporate veil; and deliberately misleading investors, regulators and the international public.

As a direct consequence of Dow’s strategy, the agonized, untimely and wholly avoidable deaths of more than 25,000 human beings remains uninvestigated, unresolved and unpunished.

Andrew 'DeLiveris' Liveris, CEO Dow Chemical

Andrew ‘DeLiveris’ Liveris, CEO Dow Chemical

Gassed, Poisoned, left to Die

Meantime, the ongoing poisoning of another 40,000 people in Bhopal continues unabated.

Because even if the 1984 gas disaster had somehow been averted, Union Carbide’s chemicals would still be damaging the bodies of thousands of families in Bhopal.

According to former workers of the factory over 15 years a massive amount of chemical substances formulated in the plant – including pesticides, solvents used in production, catalysts, and other substances, as well as by- products – were routinely dumped in and around the factory grounds, causing pollution of the soil, water and air.[xviii] Between 1969 and 1977, byproducts and wastes were dumped into pits situated in the factory premises, covering 21% of the total site area. In 1977, disposal ponds were constructed 400 metres north of the plant, covering an area of 14 hectares. Several thousand tonnes of toxic wastes and by-products were henceforth dumped at these sites.[xix] By 1982, UCIL was informing UCC of major leakages from the ponds.[xx] In 1983, following the death of several cattle, a local attorney wrote to management of potential legal action due to contamination threatening the health of local communities.[xxi] The management termed the claims “baseless”.

By 1989, UCC had undertaken secret tests of soil and water around the plant and discovered the samples to be lethally toxic, but its managers covered up the results and did nothing to address the sources of pollution or warn local communities drinking from wells the company had already identified to be suspect. Instead, in 1994 UCC divested itself of its Indian shareholdings and declared the pollution it had collaborated in causing and covering up to be the State government’s problem.

Today, the toxic plume caused by thousands of tonnes of wastes has contaminated community wells with carcinogenic and mutagenic organic chemicals at least five kilometres away from the plant site, affecting 40,000 local residents.

Union Carbide and Dow continue to contest suits in India and New York attempting to make them take responsibility and end the poisoning. Many of those being steadily poisoned today were also gassed in 1984.

 

No Justice, No Business

Union Carbide declares itself to be part of Dow’s global business. Dow’s global business is contesting ‘polluter pays’ whilst thousands of innocent families continue to be poisoned. Dow’s global business, therefore, is a fugitive from India, on the run from criminal charges.

The Union Carbide shareholders of 1984 couldn’t reasonably have been expected to know that management had created a disaster-in-waiting in Bhopal that would ensue before the year-end. But, the Dow Chemical shareholders of 2014 are complicit in management’s policy of liability evasion at all costs, including but not limited to human, ethical, social and environmental, a policy that extends, perpetuates and deepens the suffering of a city that has already suffered enough.

Despite three decades worth of legal travesties, dirty politics and gross miscarriages of justice, Bhopal survivors have maintained an unbending determination to obtain remedies and restitution via legal processes. Purely as a result of survivor group interventions, criminal, civil and environmental cases remain alive in Indian and U.S. jurisdictions, and Dow has made substantial material losses through abandoned investment programmes in India.

In response, Dow’s Indian subsidiary has itself filed several legal suits against Bhopal survivor groups – which include some of the poorest people in the world – the latest of which includes a demand for hundreds of thousands of dollars.

Dow Chemical J'accuse

 

[i] Larry Everest, Behind the Poison Cloud, p.21

[ii] OSHA guidelines for hydrogen cyanide, accessed at http://www.cdc.gov/niosh/docs/81-123/pdfs/0423.pdf 

[iii] Karlsson, E., N. Karlsson, G. Lindberg, B. Lindgren, and S. Winter, “The Bhopal catastrophe – consequences of a liquefied gas discharge.” Defense Research Institute, Sweden, 1985. NTIS ISSN 0347-2124.

[iv]Dr Heeresh Chandra, who performed over 100 autopsies at Hamidia Hospital in the days following the disaster, reported that there was “a gross increase in the weight of the lungs of up to three times the normal. The entire respiratory tract showed pathological changes. The lungs were heavily water logged and had a distinctive cherry-red colour… The mucosa was intensely congested. The trachea and the major divisions of the bronchi revealed necrotizing or ulcerative changes.”

[v] Dr. Ashok Gupta, quoted in Larry Everest, Behind the Poison Cloud, p.15

[vi] Amnesty International,“Clouds of Injustice”, pps. 10-12

[vii] R Dhara, “Health Affects of the Bhopal Gas Leak: a Review”, New Solutions, Spring 1994

[viii] “The Bhopal Gas Tragedy, 1984 – ?” Report from the Sambhavna Trust, 1998

[ix] S Srimarachari et al, op cit. pp. 298-293

[x] “Health Affects of the Bhopal Gas Leak: a review”, op cit, p.40

[xi] Shilotri NP et al, “Gynaecological and obstetrical survey of Bhopal women following exposure to methyl isocyanate”, J Postgrad Med, 1986; 32:203-5

[xii] International Perspectives in Public Health, vol. 11 & 12, 1996

[xiii] AK Saxena et al, “Effect of exposure to toxic gas on the population of Bhopal: IV- Immunological and chromosomal studies”, Indian journal of experimental biology, 26 pp. 173-6

[xiv] C Sathyamala et al, “Against all odds: Continuing effects of the toxic gases on the health status of the surviving population in Bhopal”, December 1989, p.10

[xv] International Perspectives in Public Health, op cit, pp. 36-40

[xvi] Ranjan N et al. “Methyl Isocyanate Exposure and Growth Patterns of Adolescents in Bhopal”, JAMA 2003;290:1856-57

[xvii] Committee on Government Assurances report, op cit. ch.2 para. 7

[xviii] Affidavit submitted in the Southern District Court of New York by former UCIL engineer T. R. Chauhan.

[xix] Assessment of Contaminated Areas Due to Past Waste Disposal Practises at EIIL, Bhopal, report by the National Environmental Engineering Research Institute, Nagpur, India, October 1997

[xx] Telex from UCIL to UCC, Danbury, Connecticut dated 25 March 1982, accessed at http://www.bhopal.net/oldsite/carbidedocuments/contamination/7137-x1.gif. Some days after a first leak was communicated, the Phase II evaporation pond was still leaking, causing great concern, and the emergency pond was also discovered to be leaking.

[xxi] Amnesty International, “Clouds of Injustice” p.44

BACK TO TOP OF PAGE


 

Bhopal disaster: still waiting for the clean up.

A look back at a report published in 2008 on the eve of the 24th anniversary of the Bhopal Disaster bemoans the lack of effective clean-up action. Now, after contaminating all around it for over thirty years, the situation remains depressingly similar.

Union Carbide, Bhopal, Dow Chemical

Abandoned Union Carbide factory still derelict over 30 years later.

Nearly a quarter century after the worst industrial disaster in history, the former Union Carbide plant at Bhopal in India is still causing suffering by polluting a drinking water aquifer. Environmental consultants Joe Jackson and Maeve McLoughlin argue that a comprehensive clean-up is long overdue.

In the early hours of 3 December 1984, the world’s worst industrial disaster occurred at Bhopal, India. An accidental release of 40 tonnes of methyl isocyanate gas from a Union Carbide pesticide production factory was carried by wind to the surrounding densely populated slums.

The results were catastrophic. An estimated 8,000 people died that night or in the days soon afterwards, rising to more than 15,000 in the following years. More than 600,000 people have been affected by exposure to the deadly gas.

The disaster at the facility in the central Indian state of Madhya Pradesh is held up as an example of terrible industrial health and safety failings and corporate irresponsibility.

While Union Carbide agreed a financial settlement with the Indian Government in 1989 in relation to the gas release, what is less known is that the contamination continues to pollute the local environment and cause acute and chronic illness to the surrounding population.

Production Unit, Abandoned Union Carbide Factory, Bhopal.

Once a proud, modern facility with neatly manicured grounds, today the site is bounded by a high concrete wall hiding about 32 hectares of overgrown wasteland, crumbling buildings and corroding tanks, towers and pipework.

People still live next to the factory wall in shanty-type accommodation known as ‘bustees’, just as they were on the night of the disaster. The residents are poor and most rely on community hand pumps dug by government agencies for water.

The factory shut down after the disaster. Ten years later, Union Carbide sold its entire stake in its Indian subsidiary, Union Carbide India Ltd, to an Indian company, Eveready Industries. Then, in 1998, the lease for the land was handed back to the Madhya Pradesh state government without completing any adequate remediation.

Today the site lies derelict and still unremediated, despite the tanks and vats being emptied in 1989. During its 15 years of operation, production by-products were buried on-site and the industrial effluent pumped to the factory’s solar evaporation ponds (SEPs); a series of three poorly lined settling lagoons known to have leaked frequently.

Union Carbide Dow Chemical

Residents from AA Nagar, immediately adjacent to the factory, collect their water

The pollutant linkages are apparent, drinking water supplies are often discoloured and have a strong chemical malodour and taste. In December 2002, a report for the Fact Finding Mission on Bhopal by Delhi-based environmental organisation Shristi found “the groundwater, vegetables and even breast milk is contaminated to various degrees by heavy metals like nickel, chromium, mercury and lead, volatile organic compounds like dichlorobenzene and halo-organics like dichloromethane and chloroform”.

Infant defects
Infants born with congenital defects and cerebral palsy have been observed in high numbers in affected communities. A small-scale epidemiological survey done in 2004 by the Madhya Pradesh Government’s Centre for Rehabilitation Studies found that residents of communities affected by groundwater contamination have higher rate of skin, respiratory and gastrointestinal diseases.

The operational standards designed for the Bhopal plant were not particularly robust, even for the 1970s. At the same time as the plant was commissioned, a sister plant was opened in West Virginia, US. There were several differences, the most significant being the mechanisms for waste effluent treatment and disposal. In West Virginia, waste effluent would pass through a treatment plant before being discharged into the Kanawha River. At Bhopal, all raw effluent was discharged directly to the on-site SEPs for containment. In a Union Carbide Corporation internal telex on 25 March 1982, the SEPs were reported to have ‘almost emptied’ through lining leakage.

Young boy receives care at Chingari Trust Rehabiltation Centre. Photo (c) Giles Clarke

Young boy receives care at Chingari Trust Rehabiltation Centre. Photo (c) Giles Clarke.

Last year one of us was given a tour of the site by a former senior process engineer. The facility looked as derelict as one would expect, given it has been left to the elements for more than two decades. Despite the presence of full-time security guards, the perimeter fence had been broken in places. A woman was grazing her goats on the overgrown grounds and some shallow hand excavations were identified across the site, where locals had reportedly been digging through buried waste products in the hope of finding suitable building materials for huts.

A recently secured warehouse contained sacks of raw process chemicals and pesticides, including Sevin which the plant was commissioned to produce. The site’s contaminated status appeared obvious; the exposed soil horizon showed bags of waste and powdered pesticides. Organic odours quickly induced headaches and liquid mercury was seen on the ground. It was said that during production, on-site burial of waste and excess stock was common – it certainly looked as if this were so.

Toxic waste abandoned above ground at the Union Carbide factory

Toxic waste abandoned above ground at the Union Carbide factory

The site has been subject to some limited investigations, but the findings are not all publicly available. Between 1982 and 2004, various agencies including the India’s National Environmental Engineering Research Institute (NEERI), Arthur D Little Ltd (appointed by Union Carbide), Madhya Pradesh Public Health Department, Madhya Pradesh Pollution Control Board and Greenpeace carried out assessments.

The studies variously included soil and water sampling of solid wastes stored on-site, known landfilled areas, SEPs and local abstraction boreholes within two kilometres of the factory site. From a review of
available information, the assessment methodologies did not constitute formal phased approaches in accordance with international good practice. Specifically there was no desk study which allowed a conceptual site model to be formed, and no strategic sampling and analysis plan was developed which would have provided a rationale for sample locations and selection of suitable analytical suites.

No comprehensive geological or hydrogeological profiling of the site or surrounding area were developed as part of these assessments, consequently no qualitative or quantitative risk assessments can be considered accurate. Much of the chemical testing was generic and non-specific, with samples being screened for total organic content or total polyaromatic hydrocarbons, the results of which, while implying the magnitude of contamination, mask the specific nature of the contaminants.

The scale of these assessments is inadequate. For example the 1997 NEERI Assessment of Contaminated Areas due to Past Waste Practices, included analysis of only 17 groundwater samples. In a review of this assessment, Arthur D Little Ltd noted the lack of site-specific data and uncertainty over site characterisation including key parameters such as infiltration rates and contaminant travel time.

However, despite the limited number of samples analysed, the majority indicate significant contaminant concentrations. Soil samples showed organic contaminants of 10-100% content, meaning in parts there were just pure contaminants and no soil matrix. Chemicals associated with pesticides produced at the plant including naphthol, naphthalene, carbaryl (Sevin) and numerous other chlorinated hydrocarbons were found.

Groundwater samples contained similar contaminants (including lindane, aldrin, naphthol and carbaryl) and many other semi-volatile organic compounds, heavy metals and inorganic contaminants. In 1999 Greenpeace International published a report, The Bhopal Legacy, researched with technical support from the University of Exeter. This provided the first public and scientifically reliable evidence of massive and spreading groundwater contamination emanating from the Bhopal plant.

Greenpeace collected 33 soil samples and 22 groundwater samples from in and around the factory site and found very high concentrations of carcinogenic chemicals and heavy metals. Twelve volatile organic compounds, most greatly exceeding World Health Organization and US Environmental Protection Agency standard limits, were found to have leached into local tube wells.

Union Carbide Bhopal

Residents of AA Nagar pumping water from a contaminated well.

Limited formal health surveillance has been carried out in relation to the impact of this contamination on local people. The population of Annu Nagar, a bustee next to the factory site, was surveyed in 2003 by the Sambhavna Clinic. Just over 90% of the population used drinking water from contaminated hand pumps and every second person was suffering from a multitude of symptoms including, anaemia, abdominal pain, giddiness, chest pains, headaches, fevers, vomiting and diminished vision.

The full effects may be much worse and more extensive than those revealed in this survey. The groundwater contaminants include some that are toxic and potentially carcinogenic, mutagenic and capable of disrupting the development of foetuses.

Shifting responsibility
The factory site was let to Union Carbide by Madhya Pradesh state on a long-term lease in 1969. The lease agreement stipulated the site should be handed back in ‘habitable and usable condition’ so in 1989, five years after the disaster, the company initiated a “site assets recovery and rehabilitation project”.

The precursor to this project was an assessment of the contamination and risks undertaken by NEERI, who, due to the lack of local experience of this type of project, were supervised by Union Carbide’s own consultants Arthur D Little Ltd. The project focused on assets recovery:‘rehabilitation’ comprised infilling of the SEPs and some limited bulk chemical removal.

Then in 1994 Union Carbide sold its 51% stake in Union Carbide India Limited to an Indian company, Eveready Industries. In 1998, in what appears to be a bureaucratic blunder, the surrender of the lease was mistakenly accepted by a licensing branch of the local Madhya Pradesh State authorities, even while the State Pollution Control Board was supervising limited ‘clean-up’.

The pollution control board wrote to the former site manager to demand the company return to finish clean-up work, but he refused, citing hand-over of the lease. If this lease surrender were contrast to a similar scenario in the UK under part IIA of the Environmental Protection Act (1990), it is inconceivable the site’s contamination status would have not been checked.

The liability for Bhopal’s ongoing contamination could be considered to lie with the original polluter, Union Carbide, the owner of the site, the Indian Government, or both. Union Carbide is now a fully owned subsidiary of the Dow Chemical Company. Dow, in turn, claims no responsibility to remediate the site. On their dedicated website UCC (Dow) claims: “All claims arising out of the release were settled 18 years ago at the explicit direction of and with the approval of the Supreme Court of India.” 1 Furthermore all enquiries regarding the current site status are directed to the Madhya Pradesh Government which took responsibility for the site in 1998. Dow’s official stance is that they have no responsibility to enact any further remediation.2 The Indian Government does not accept this assertion by Dow and until recently has been reluctant to accept any responsibility.

Polluter pays
Numerous survivor and protest groups have been calling for the complete remediation of the site and provision of clean drinking water to people in the surrounding bustees. In the US in 2004, in a legal suit filed against Union Carbide by seven individual victims and five organisations the US Federal Court ruled that the company could be made to clean up the site.

Union Carbide Dow Chemical, Bhopal

Abandoned Solar Evaporation Pond, abandoned Union Carbide factory, Bhopal

A key stipulation of the ruling was that the Madhya Pradesh State and Indian national governments had to state they had no objection. This was finally confirmed on 23 June 2004, with the Indian authorities stressing Union Carbide’s responsibility under the ‘polluter pays’ principle.

However, Union Carbide appealed and the suit was dismissed in 2005. A sister suit by another victim, again filed in the US in 2007, is currently being adjudicated before the Second Circuit Court of Appeal. This second suit seeks damages for property loss and personal injury resulting from the contamination. A decision is expected imminently.

Meanwhile in India, a case in the Madhya Pradesh State High Court has brought a formal demand from the Indian Ministry of Chemicals and Fertilizers that Union Carbide and its successors pay about $22 million towards the cost of a thorough clean-up in lieu of a legal determination of liability. Earlier this year, the Indian Law Ministry gave the opinion that all of Union Carbide’s liabilities resulting from Bhopal had to be borne by Dow.

Despite the Indian view, the effectiveness of Indian legal rulings against Union Carbide are reflected in the outstanding extradition order for the company’s former chief executive Warren Anderson. He has been wanted in India on charges of culpable homicide in relation to the original disaster for nearly 24 years.

In 2004, Amnesty International released a report entitled Clouds of Injustice: Bhopal Disaster 20 Years On. Drawing attention to the continuing violation of human rights in Bhopal, the report quotes Judge Weeramantry, sitting in the International Court of Justice in The Hague: “The protection of the environment is… a vital part of contemporary human rights doctrine, for it is a sine qua nonfor numerous human rights such as the right to health and the right to life itself. It is scarcely necessary to elaborate on this, as damage to the environment can impair and undermine all the human rights spoken of in the Universal Declaration and other human rights instruments.”

Amnesty notes, “it is now a recurrent theme in environmental law that liability for environmental harm is channelled towards the private originator or polluter, sometimes on the basis of fault and in other cases on the basis of strict liability. Operators of hazardous facilities are held liable, in some cases by treaties imposing strict liability.”

Amnesty concludes by calling on Dow to promptly provide full reparations, restitution, compensation and rehabilitation for the continuing damage done to people’s health and the environment by the ongoing contamination of the site.

Proper investigation needed
The internationally accepted ‘polluter pays’ principle has not been directly applied in Bhopal due to the political and legal complexities and the absence of a suitable ground investigation. A robust, phased investigation would accurately define the conceptual site model and all viable pollutant linkages.

Bhopal Dow Chemical

Mercury lies on the ground inside the abandoned factory

Specifically this would require identifying source terms (for example, contaminated soils at the site), pathways by which exposure or migration may occur (such as migration via groundwater beneath the site) and receptors (for example, the local population who are drinking the contaminated groundwater). And that, in turn, would prove the suspected linkages between the abandoned plant and the impacted water supplies. The level of information available to date is not sufficient to fully characterise the site or design a suitable remediation or risk management strategy.

The latest news from Bhopal is that a major US-based land remediation company Cherokee has again approached the Bhopalis to enact a charitable remediation effort. Cherokee cites purely altruistic reasons for this approach, pledging $1 million and free technical assistance to aid the site’s clean-up.

The company made this offer once before in 2006 and it included a lengthy technical site assessment specification written by consultants ERM. However, this document, in our view, does not provide a sound basis for remediation. Local campaigners have greeted Cherokee’s approaches with suspicion.

The Indian industrial giant Tata also offered to help by pledging money towards a cooperative clean-up effort. But this was on condition that Dow would be absolved of all environmental liability regarding the remediation.

The International Campaign for Justice in Bhopal is a coalition of survivor groups and non-profit organisations seeking to enforce the remediation of the site.3 One of the demands of a recent protest by the group – which included a 500-mile walk, a 78-day vigil and a fast in New Delhi outside the prime minister’s office – was the setting up of the Empowered Commission for Bhopal, specifically empowered to not only recommend government actions, but to unilaterally apply them.

Small steps
On 8 August this year, in the face of the impasse over Bhopal liabilities, the Indian and Madhya Pradesh State governments committed one billion rupees (£13 million) to progress many issues including the remediation while the responsibility is apportioned. The government also confirmed rejection of Tata’s conditional offer of help.

The Indian agency whose inadequacies were revealed in prior assessments, NEERI, is being lined up to assess the current situation in the absence of credible alternative local agencies. Given the inexperience of Indian agencies, the possibility remains open for non-Indian environmental science professionals to assist the Commission’s work if it is to meet international standards.

On the disaster’s 24th anniversary, the environmental damage and human suffering at Bhopal go on. Regardless of the legal and political posturing, the fact remains that a huge tract of land is poisoning the local population and no sufficient ground investigation has been done to establish what is actually happening.

Whether it is the Indian Government’s inaction or irresponsibility of Dow, the result is an ongoing human tragedy out of place in an increasingly globalised and regulated world. Now it is up to the Empowered Commission to implement a badly needed remediation and simultaneously unravel the legal issues surrounding the disaster and ongoing environmental liability.

Local stakeholders, who have had to fight for every step towards progress, surely deserve the assessment and clean-up which eventually takes place at Bhopal to be completed to international standards. Our view is that it will be difficult for local campaigners and Indian authorities to be given this assurance without impartial, international technical support.

Joe Jackson is an associate director of Armac Environmental. Maeve McLoughlin is a freelance environmental consultant.

Further information
1. www.bhopal.com (http://www.bhopal.com/)
Madhya Pradesh State Government
(http://www.mp.gov.in/bgtrrdmp/default.htm)
International Campaign for Justice in Bhopal (http://www.bhopal.net/)

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‘The Price of Life. Working at the Bhopal Factory.’

Speech given to UNISON Waltham Forest on International Workers’ Memorial Day 2015.

“On December 2/3, 1984, an enormous release of toxic gas, from a Union Carbide Chemical plant in Bhopal, killed thousands of people. Something like 8-10,000 died within the first couple of days and around 25,000 to date. It’s still the worst single-incident industrial disaster in history.

“The disaster in Bhopal can easily be seen as a product of the worst of globalization. It was a direct consequence of cost-driven double standards in safety- along with the routine violation of worker’s rights, and a disregard for the lives of people from poor, marginalized communities.

“30 years after the gas leak, toxic waste dumped while the plant was in operation continues to contaminate the area and the local groundwater aquifer, used as a primary water supply by thousands, is heavily contaminated with toxic chemicals.

“This is Bhopal’s second disaster and even the US Courts recognise this as a separate matter from the gas tragedy.

“Dow Chemical, which now owns Union Carbide, insists that ‘polluter pays’ laws, ratified by both India and the US, do not apply and it has no responsibilities in Bhopal.

“In fact, in the thirty years since the gas tragedy, Union Carbide has never had to defend itself in open court, and has never had to face those who lost their health, their livelihoods, and their loved ones. It is wanted on criminal charges of culpable homicide but has never answered the charges and is a ‘proclaimed absconder’ from the Indian courts. Dow has been summonsed on numerous occasions to explain why it does not produce Union Carbide. Dow has never shown up in court.

“The root of both disasters is negligence driven by cost-cutting measures and, arguably, ones that would only have taken place in the Third World. At the time of the disaster, Unions Carbide’s Bhopal factory had become so neglected that staff numbers had been cut to the barest of minimums; un-trained staff were running the production units, and at least six safety systems on the MIC unit alone were not functioning correctly. Some were broken, some were never specified correctly in the first place, and others were simply switched off to save electricity. These safety issues had all been raised, in an internal Union Carbide safety audit, two years before the disaster.

“Union Carbide workers led the fight to keep safety measures in place before the disaster. Worker’s unions petitioned factory management, local communities, local and national officials and even Carbide management in the US about the dangers at the Bhopal plant.

“The result was suppression of the union, the sacking of three leaders and the continued de-skilling and downsizing of staffing levels under a savage cost-cutting program orchestrated by the US parent.

“Following the death of Mohammad Ashraf in December 1981, 28 workers were exposed to a phosgene leak in January 1982; three electrical workers were severely burned in April 1982, and four workers were exposed to Methyl Isocyanate in October the same year.

“During the “safety week” proposed by management to address worker grievances about the Bhopal facility, repeated incidents of such toxic leakage took place and workers took the opportunity to complain directly to the American management officials present. The workers demanded hazardous duty pay scales commensurate with the fact that they were required to handle hazardous substances. These requests were denied. Risking their jobs, workers of the Union Carbide factory in Bhopal warned the neighbourhood population about the likelihood of a catastrophe.

“So, on the night of the disaster, none of the plant’s safety systems functioned, which is a spectacular failure, but Carbide quickly trotted out a story blaming a disgruntled worker for sabotage- Dow and Carbide still make the claim today, and still refuse to name the worker.

“Since the disaster, Unions have been at the forefront of the Bhopal campaign.

“In a rehabilitation scheme, gas-affected women were given stationary work by the state government, but paid so poorly they refused it as an insult. In 1987 they formed their own union and chanted their demands from dawn to dusk in front of the Chief Minister’s office.

“Unsatisfied, on June 1st, 1989, more than 100 women, many with children in their arms, marched 750 kilometres to New Delhi to petition the Prime Minister. Many sold everything to join the march, and a few suffered miscarriages. Even after returning, it took months of struggle before some of their demands were met.

“The women survivors in this union are one of the five survivors groups in Bhopal with whom we work. These five groups, along with the BMA, are all affiliated to the International Campaign for Justice in Bhopal. The President of the union, Rashida Bee, and its Secretary, Champa Devi Shukla, were awarded the Goldman Environmental Prize in 2004 for their leadership of the campaign. Rashida Bee says that: “When Governments and Corporations do not live up to their obligations, it is only solidarity among workers, trades unions and people’s groups that can carry us forward,”

“The Bhopal campaign continues to work with unions, particularly from the UK, and welcomes their support. In December, at the 30th anniversary of the disaster, a delegation of Unions from Scotland made the trip out to Bhopal and last week at the STUC congress a motion was carried to support us and the Bhopal cause generally.

“Bhopal is a stark reminder that occupational health issues can quickly become public health catastrophes, particularly in the petrochemical industry. Thirty years later, many of Union Carbide’s former workers in Bhopal are still fighting the company for adequate compensation and justice.

“ Bhopal has taught the chemical industry that accidents aren’t worth the cost of prevention. We all remain at risk because the chemical industry has never felt the sting of accountability. Three decades later, we’re all living in Bhopal.”

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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.