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Dow's Liabilities

Dow claims that it has no liability for the Bhopal disaster. Not to put too fine a point on it, but they’re liars.

Key Outstanding Liabilities
The Settlement
The Civil Case: Environmental Liability
The Criminal Case: Criminal Liability
Dow Lies


Key Outstanding Liabilities

Two court cases are pending: one civil, heard in the Southern District federal court in New York; the other criminal, heard before the Chief Judicial Magistrate’s court in Bhopal.


Anderson's Bail Bond

The civil case - which is unrelated to the disaster itself - was filed in United States federal court in 1999 by Bhopal residents against Union Carbide. When it fled India after Bhopal, Carbide left tons of chemical wastes behind, and these have poisoned the groundwater and thousands of Bhopal residents. The civil case seeks a comprehensive cleanup of the contaminated site and the properties around the factory, and compensation and medical monitoring for those poisoned by Carbide’s chemical waste. The lawsuit, Bano v. Union Carbide, has survived four motions to dismiss, and has been reinstated twice by the 2nd Circuit Court of Appeals. The case is currently in the discovery process, and will soon proceed to trial.

The criminal case - which is related to the 1984 Bhopal disaster – was originally filed in 1987, and reinstated in 1991. Both Warren Anderson, the former CEO of Union Carbide, and the Union Carbide Corporation itself face criminal charges in India of “culpable homicide” (or manslaughter). Both Anderson and Carbide have repeatedly ignored summons to appear in India for trial, and are officially considered “absconders” (fugitives from justice) by the Indian Government. While Anderson, if extradited and convicted, would face ten years in prison, Carbide faces a fine which has no upper limit.

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The Settlement

In March 1985, through the Bhopal Gas Leak Disaster (Processing of Claims) Act, the Indian Government arrogated to itself the sole powers to represent the victims in the civil litigation against Union Carbide. It then filed a $3 billion compensation suit on behalf of the victims in US federal court, but the case was sent to Indian courts in May 1986 on grounds of forum non-convenience, under the condition that Union Carbide would submit to the jurisdiction of Indian courts.

Carbide’s lawyers devised a plan to delay all legal proceedings in order to squeeze the Indian government into accepting a low settlement. It contested the legitimacy of courts it had asked to be tried before. It pleaded to have ‘illiterate’ victims’ claims denied. It threatened to summon every individual survivor and appeal all Indian decisions in US courts. It denied it was a multinational. It claimed the gas was not ultra-hazardous. It blamed an unnamed saboteur. It appealed court orders for humanitarian relief, while professing its concern for the victims. Their first settlement offer was a paltry $100 million dollars, less than half the company’s liability insurance cover. By 1989, Carbide had spent at least $50 million on legal fees alone. How much they spent on PR companies such as Burson Marsteller, who they hired from Dec. 20 1984, has not been disclosed.

It wasn’t until 1989 that a settlement was reached between Carbide and the Indian Government – one made without the consultation or consent of the survivors themselves. The victims were awarded an average of $500 in compensation (a total of $470 million), falling far below international compensation standards and the standards set by Indian Railways for accidents. In exchange, Carbide was to be absolved of all civil liabilities; criminal cases against the company and its officials were to be extinguished; and the Indian government was to defend the corporation in the event of future suits.

Many survivors found the settlement insulting. Indeed it was. It awarded them an average of 7 cents a day – the cost of a cup of tea – for a lifetime of unimaginable suffering. At Union Carbide, by contrast, “restructuring” - or asset stripping - in the immediate aftermath of Bhopal landed its managers and major shareholders huge windfalls in stock payments and golden parachutes. It paid only $200 million (or 43 cents a share) of its own money to settle the world’s largest peacetime massacre. In fact its annual report described 1989, the year of the settlement, as its ‘best financial year on record’.

After having waited five long years for compensation, the Bhopal victims nevertheless filed suit to overturn the settlement in a case that went all the way to the Indian Supreme Court. Citing inaccurate statistics for the number of dead and injured victims, the court ruled in 1991 that the settlement amount would stand, simultaneously reinstating the criminal cases against Carbide, its CEO Warren Anderson, and other officials.

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The Civil Case: Environmental Liability

The Contamination
Keen to distance itself from the disaster, Union Carbide fled India leaving behind tons of toxic wastes strewn in and around the factory site. According to former workers of the Union Carbide factory in Bhopal, while the factory was in operation, massive amounts of chemicals - including pesticides, solvents, catalysts and wastes - were routinely dumped in and around the factory grounds. These include deadly substances such as aldicarb, carbaryl, mercury, and several chlorinated chemicals and organic poisons. In 1977, Carbide constructed Solar Evaporation Ponds (SEPs) over 14 hectares 400 meters north of its factory. Toxic effluents and toxic wastes were routinely dumped there. Two tube wells dug in the vicinity of the SEPs were abandoned because of the noxious smell and taste of the water.

A 1990 study by the Bhopal Group for Information and Action found di- and trichlorobenzenes in water samples taken from wells being used by communities living near the factory fence lines, and phthalates, chlorinated benzenes and aromatic hydrocarbons in the soil samples taken from the SEPs. In 1996, the State Research Laboratory conducted its own tests on water and concluded that the chemical contamination found is “due to chemicals used in the Union Carbide factory that have proven to be extremely harmful for health. Therefore the use of this water for drinking must be stopped immediately.”


A few of the contaminants found in a typical glass of Bhopal drinking water.

In 1999, Greenpeace and Bhopal community groups documented the presence of stockpiles of toxic pesticides (including Sevin and hexachlorocyclohexane) as well as hazardous wastes and contaminated material scattered throughout the factory site. The survey found substantial and, in some locations, severe contamination of land and water supplies with heavy metals and chlorinated chemicals. Samples of groundwater from wells around the site showed high levels of chlorinated chemicals including chloroform and carbon tetrachloride, indicative of long-term contamination. Over the years, the groundwater supplying an estimated 20,000 Bhopal residents has become heavily contaminated by Union Carbide’s toxic by-products.

Lead, nickel, copper, chromium, hexachlorocyclohexane and chlorobenzenes were also found in soil samples. Mercury in some sediment samples was found to be between 20,000 and 6 million times the expected levels. According to a 2002 study by the Fact Finding Mission on Bhopal, many of Union Carbide’s most dangerous toxins can now be found in the breast milk of mothers living around the factory.

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Responsibility
Carbide's Engineering Department warned of danger of groundwater contamination as early as 1972. The proposed design of the Solar Evaporation Ponds risked "danger of polluting subsurface water supplies in the Bhopal area". To avoid this "new ponds will have to be constructed at one to two-year intervals throughout the life of the project". They were not, of course. Union Carbide documents reveal instead that the ponds were soon leaking. On 25 March 1982 a panicky telex was sent from India to Union Carbide in Danbury. Some days later, the Phase II pond was still leaking, causing great concern, and the emergency pond was also discovered to be leaking.

Carbide documents obtained through discovery. More here.

A preliminary study of soil and groundwater pollution inside the plant, conducted in 1989 by Carbide, found plenty to be worried about. Some water samples produced a 100% death rate among fish placed in them. Nevertheless Carbide issued no warning. An internal memo refers to the need for secrecy, suggesting that the information should be kept "for our own understanding". Not only did it fail to warn people living nearby, it vociferously denied that there was a problem and, incredibly, wrote to the Gas Relief Minister criticizing those who were trying to make people aware of the danger, suggesting that they were "mischievous" agitators. Carbide in the US meanwhile tried to portray Bhopal activists and their supporters as "communists" who aimed "to restructure US society into something unrecognizable and probably unworkable".

Carbide and Dow later relied on a report from a government organization called NEERI which in 1997 published a report which found that water outside the factory was not contaminated. Consultant Arthur D Little had been appointed in 1989 by Union Carbide US to work privately with NEERI. ADL believed itself to be working with UCC in Danbury, but all reference to UCC was to be deleted. ADL was to pretend to be working with UCIL alone. But a memo of 1993 shows the US Carbide executives in the driving seat. ADL eventually reported back to Carbide suggesting that NEERI had failed to find contamination because its sampling methods were flawed. In particular ADL suggested it was imprudent to claim that local water was safe for drinking and warned that groundwater contamination could happen far more swiftly and seriously than envisaged. ADL was unclear at one point as to whether NEERI was claiming that labourers were or were not exposed to contaminated groundwater. ADL's suggested changes ran to 17 pages, but none of them were incorporated in NEERI's published report, which is what Dow and Carbide still quote, knowing it to be worthless.

Carbide’s own documents reveal that they knew for decades that their disposal practices in Bhopal were leading to massive contamination of the soil and groundwater, and that their sole concern was how to evade responsibility and cover it up.

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Polluter Pays
What Carbide knew and when it knew it, while damning, is largely irrelevant. The polluter pays principle is the law in India, and intent or knowledge of contamination is not a prerequisite for being held accountable. In Indian law, the Hazardous Waste (Management and Handling) Rule of 1989 594(E), Section 3 Sub section (1) and Section 4(1) stipulates that the producers of the contaminated waste are responsible for decontamination. The polluter pays principle is also enshrined in the Environmental Protection Act, passed in India in 1986. Ruling in Vellore Citizens' Welfare Forum v. Union of India (1996) 5 SCC.647, the Indian Supreme Court declared that, “. . .Once the activity carried on is hazardous or inherently dangerous, the person carrying on such activity is liable to make good the loss caused to any other person by his activity irrespective of the fact whether he took reasonable care while carrying on his activity. The rule is premised upon the very nature of the activity carried on.” Elaborating on the polluter pays principle in MC Mehta v. Union of India (1997) 2 SCC 353, the Supreme Court ruled that polluter pays principle as interpreted by the Court means that “the absolute liability for harm to the environment extends not only to compensate the victims of pollution but also of restoring the environment degradation.”

In a June 28, 2004 official letter, the Indian Government has gone so far as to stress that the polluter pays principle applies in this specific case: "Pursuant to the ‘polluter pays’ principle recognized by both the United States and India, Union Carbide should bear all of the financial burden and cost for the purpose of environmental clean up and remediation." The letter was issued in support of Bano v. Union Carbide.

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The Lawsuit
Bano v. Union Carbide - which is unrelated to the disaster itself - was filed in United States federal court in 1999 by Bhopal residents against Union Carbide. When it fled India after Bhopal, Carbide left tons of chemical wastes behind, and these have poisoned the groundwater and thousands of Bhopal residents. The civil case seeks a comprehensive cleanup of the contaminated site and the properties around the factory, and compensation and medical monitoring for those poisoned by Carbide’s chemical waste. The lawsuit has survived four motions to dismiss, and has been reinstated twice by the 2nd Circuit Court of Appeals. The case is currently in the discovery process, and will soon proceed to trial.

Interestingly, many of the internal Union Carbide documents which reveal the extent of Carbide’s negligence, culpability and naked greed in Bhopal have become public as a result of this lawsuit. In this interview, Raj Sharma, the lead attorney for the Bhopal victims in this case, describes their significance. Many of the key judgments in the case are available here.

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Dow’s PR/BS
Dow Chemical has argued that the 1989 Bhopal settlement resolved all liabilities. Obviously this is not the case, as Bano v. Union Carbide has survived four motions to dismiss since it was filed in 1999. In fact, the settlement dealt solely with disaster-related damages sustained by Bhopal residents, not the environmental liabilities and pollution associated with the routine operation of the factory. On March 17, 2004 the Second Circuit Court of Appeals resoundingly refuted Dow’s PR/BS by sanctioning further property damage, environmental remediation, and personal injury claims against Union Carbide, while in a June 28, 2004 official letter, the Indian Government asked the court to hold Carbide liable for environmental remediation at the site.

Dow has also sought to elude responsibility for a cleanup by shifting the blame. Although the site has always been owned by the State Government of Madhya Pradesh, it was leased by Carbide for its pesticide factory. Carbide returned this lease to the State Government in 1998, but without fulfilling one of its key provisions: that the site be returned in a pristine state. Carbide itself acknowledges this was a condition for the lease in this document.

Although polluter pays is the law in India, Dow has argued that the current owner of the land, the Madhya Pradesh government, is responsible for the cleanup. Dow has also argued that the $300 million accrued through interest on Union Carbide’s original 1989 settlement - which the Indian Supreme Court ruled in July 2004 exists solely to compensate the Bhopal victims for the loss of their health, their livelihoods, and their loved ones - should be used to pay for a cleanup, turning the polluter pays principle entirely on its head. In summary, Dow has said both that local government should pay for the clean up AND that gas survivors should pay - the first is in contravention of lawful principle and common sense, while the second contradicts all notions of human decency.

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Chronology of the Case
Nov. 15, 1999
- Class action complaint is filed
Nov. 18, 1999 - Effective service of process on Carbide is accomplished at their Danbury offices.
Nov. 21, 1999 - Process servers inform plaintiffs' counsel at GLRS that Anderson's Long Island address is a vacant lot.
Nov. 25, 1999 - Process servers inform plaintiffs' counsel at GLRS that service on the New York condo is not effective service since its only a mailing address.
March 8, 2000 - Mr. Krohley indicates to GLRS that they would, now, be willing to accept service on behalf of Warren Anderson and tried to suggest that he had not been evading service but has had "some heart trouble" lately.
August 28, 2000 - Mr. John F. Keenan dismissed the class action suit mainly on the ground that the Bhopal Act [Bhopal Gas Leak Disaster (Processing of Claims) Act, 1985] prevented individuals or organizations outside the Government of India from bringing an action against Union Carbide or its official.
October 2000 - Appeal against Judge Keenan's decision filed before the Second Circuit Court of Appeal of the US Federal Court. Futile requests to the Indian government, over several months, to file an amicus curae before the Court of Appeal to clarify the role and scope of the Bhopal Act in support of the appeal.
November 15, 2001 - The Second Circuit Court of Appeal part affirmed and part dismissed the decision of Judge Keenan's court. Claims under seven counts regarding contamination of ground water and soil in and
around the factory and consequent health damages are directed to Keenan for re-consideration. Plaintiffs file motion to discovery.
April, 2002 - In the ongoing discovery proceedings before Judge Keenan Union Carbide submitted over 4000 pages of company documents.
June 2002 - In response to a petition moved under Rule 56 [f] by plaintiff's attorney on June 20, 2002 Judge Keenan has directed Union Carbide to provide additional documentation related to the case. Union Carbide obeyed this order.
September 20, 2002 - Plaintiffs and their attorney Mr. Raj Sharma filed affidavits on the basis of about 100 "smoking gun" documents before Keenan.
March 18, 2003 - John F. Keenan again dismisses the suit, this time because "Plaintiffs' claims are untimely and directed at improper parties. Union Carbide has met its obligations to clean up the contamination in and near the Bhopal plant. Having sold their shares long ago and having no connection to or authority over the plant, they cannot be held responsible at this time."
April, 2003 - Appeal against Judge Keenan's decision filed before the Second Circuit Court of Appeal of the US Federal Court. Plaintiffs call Keenan's decision a “glaring instance of juridical prejudice”.
October 17, 2003 - Leading Congressman Frank Pallone and eight other US lawmakers file an amicus brief with the Court of Appeals, asserting, "It is unacceptable to allow an American company not only the opportunity to exploit international borders and legal jurisdictions but also the ability to evade civil and criminal liability for environmental pollution and abuses committed overseas."
October 31, 2003 - Second Circuit Court of Appeals hears oral arguments.
March 17, 2004 - the Second Circuit in part reverses Keenan's dismissal. The Court holds that Union Carbide could be ordered to clean up individual victims’ property, and could also be ordered to clean up the plant site itself, if the Indian authorities, which own the land on which the plant sits, were to intervene and request such a clean-up. The appeal decision also allows for certain personal injury claims within the statute of limitations period; property claims for monetary damages; and claims for medical monitoring by plaintiffs.
June 18, 2004 - Three Bhopal activists, including the Goldman award winner of 2004 Ms Rasheeda Bi, begin an indefinite hunger strike without water in order to force the government of India to issue a 'no objection' certificate regarding the clean up and decontamination of the UCIL plant site. This NOC was needed in the NY district court by June 30th, 2004.
June 23, 2004 - Six days later, the Government of India finally bows to pressure and agrees to submit a statement to the New York District Court. This letter is sent on June 28th.

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Selected Press Coverage
November 1999 - Reuters article on the filing of the suit
December 2000 - overview of the Bhopal legal history, including remarks by H R Sharma
December 2001 - Frontline magazine article on the ramifications of the Second Circuit Court of Appeal's November decision
December 2001 - opinion in The Hindu on the Second Circuit Court of Appeal decision
December 2002 - the New Scientist reports on new evidence raised by the discovery documents. The piece provoked a response from Carbide's lawyers, and a counter-response from the ICJB.
December 2002 - Frontline article on the implications of the Carbide documents discovered in the case
December 2002 - interview with H R Sharma in Frontline
March 2003 - the Tribune looks critically at the role of Indian officials in Judge Keenan's March decision
March 2003 - coverage of the survivors' intent to appeal Judge Keenan's decision
November 2003 - in depth coverage in Frontline of the October amicus brief filed by US Congresspersons
April 2004 - Frontline coverage of the March US appeals court decision
April 2004 - Interview with Rajan H Sharma on the implications of the appeal decision
June 2004 - an article in The Hindu examines the Indian government's role in the June hunger strike

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The Criminal Case: Criminal Liability

Responsibility
Bhopal is not only a disaster, but a corporate crime. It began as a classic instance of corporate double-standards: Union Carbide was obliged to install state-of-the-art technology in Bhopal, but instead used inferior and unproven technology and employed lax operating procedures and maintenance and safety standards compared to those used in its US 'sister-plant'. The motive was not simply profit, but also control: the company saved $8 million, and through this deliberate under-investment managed to retain a majority share of its Indian subsidiary. (1) On THAT NIGHT, none of the plant’s safety systems - six in all - were operational, and the plant siren had been turned off.

Carbide's Safety Meltdown

NONE of the safety systems designed to prevent a leak - six in all - were operational on THAT NIGHT:

1. Flare Tower (disconnected)
2. Vent Gas Scrubber (out of caustic soda and inadequate for unsafe volume of gas)
3. Water Curtain (not functional; designed with inadequate height)
4. Pressure Valve (leaking)
5. Run Off Tank (already contained MIC)
6. Mandatory Refrigeration for MIC Unit (turned off to save money)

The Indian subsidiary UCIL was majority owned by the US corporation and even relatively minor decisions could not be made without reference to the US. Carbide provided all process designs in Bhopal, which included flow diagrams, material and energy balances, operating manuals and other information necessary for the erection and start up and operation of the plant. It couldn't be any other way: no India-based firm had any experience of MIC/Sevin production whatsoever. This technology exchange from the US to India was formalised in a technical services agreement and UCIL paid for continual know-how and safety audits. Internal Carbide documents also reveal that UCC set up a "design review process", meaning continual review of design by US engineers.

Carbide had ample warning that a disaster was imminent. On December 25, 1981, a leak of phosgene killed one worker, Ashraf Khan, at the plant and severely injured two others. On January 9, 1982, twenty five workers were hospitalized as a result of another leak at the plant. 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. In the wake of these incidents, workers at the plant demanded hazardous duty pay scales commensurate with the fact that they were required to handle hazardous substances. These requests were denied. Yet another leak on October 5, 1982 affected hundreds of nearby residents requiring hospitalization of large numbers of people residing in the communities surrounding the plant. Opposition legislators raised the issue in the State Assembly and the clamor surrounding these incidents culminated in a 1983 motion that urged the state government to force the company to relocate the plant to a less-populated area. Starting in 1982, a local journalist named Rajkumar Keswani had frantically attempted to warn of the dangers posed by the facility. In September of 1982, he wrote an article entitled "Please Save this City." Other articles, written later, bore grimly prophetic titles such as "Bhopal Sitting on Top of a Volcano" and "If You Do Not Understand This You Will Be Wiped Out." Just five months before the tragedy, he wrote his final article: "Bhopal on the Brink of a Disaster."

In May 1982, Union Carbide sent a team of U.S. experts to inspect the Bhopal plant as part of its periodic safety audits. This report, which was forwarded to Union Carbide's management in the United States, speaks unequivocally of a "potential for the release of toxic materials" and a consequent "runaway reaction" due to "equipment failure, operating problems, or maintenance problems." In fact, the report goes on to state rather specifically: "Deficiencies in safety valve and instrument maintenance programs.... Filter cleaning operations are performed without slipblinding process. Leaking valves could create serious exposure during this process." In its report, the safety audit team noted a total of 61 hazards, 30 of them major and 11 in the dangerous phosgene/MIC units. It had warned of a “higher potential for a serious incident or more serious consequences if an accident should occur.” Though the report was available to senior U.S. officials of the company, nothing was done. (2) In fact, according to Carbide's internal documents, a major cost-cutting effort (including a reduction of 335 men) was undertaken in 1983, saving the company $1.25 million that year.

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Confused by Carbide's PR/BS?

"Sabotage"

"Indian Managed"

"No Liability"

Learn the TRUTH behind Carbide's lies. Visit www.bhopal.net/bhopal.con

Sabotage?
Immediately after the disaster, Union Carbide launched an aggressive effort to obscure the cause, paying for the only study ever to conclude that sabotage was responsible. Although this study has never been entered into evidence in a court of law – its scientific value is dubious – Dow and Carbide cite it shamelessly as they flee any responsibility for Bhopal.

Every investigation and analysis not paid for by Carbide concluded causes other than sabotage. The process safety system trumpeted by Carbide included a design modification installed in May 1984 on the say-so of US engineers. This ‘jumper line’, a cheap solution to a maintenance problem, connected a relief valve header to a pressure vent header and enabled water from a routine washing operation to pass between the two, on through a pressure valve, and into MIC storage tank 610. Carbide’s initial investigation agreed that the pressure valve was leaking but declined to mention the jumper line.

Carbide itself has cast doubt on the sabotage theory. In Congressional testimony on March 26, 1985, Union Carbide’s CEO Warren Anderson stated that there was “no evidence whatsoever that sabotage was behind the incident at Bhopal.” (3) Mr. Anderson was also quoted at a March, 1985 press briefing as saying that sabotage is “always a potential and you have to worry about it. That’s why you need the redundancy… Built into the safety system are a whole series of capabilities that can take care of whatever inadvertent action or commission has taken place so you’re not all dependent on just one item to either make it safe or make it unsafe.” (4) Finally, Jackson Browning, Union Carbide’s Vice President for Health, Safety and Environmental Affairs, was quoted as testifying before a Congressional committee that "the MIC tank line fittings are colored-coded and that the water line couplings are incompatible with the gas line couplings that go into the tank" - therefore making a deliberate introduction of water into the MIC tank, as Union Carbide has claimed, virtually impossible. (5)

Most damningly of all, although Carbide claims it is certain of the identity of the saboteur “responsible” for the death of 22,000 people, they’ve never publicly revealed his identity. In fact, they’ve been particularly careful to avoid doing so because it would invite a libel suit in which the theory and the facts of the disaster would be open to scrutiny.

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The Case Against Carbide
In the wake of the disaster, Carbide’s CEO Warren Anderson, other top executives, and the corporation itself were charged by the Central Bureau of Investigation (the equivalent of the American FBI) with “culpable homicide” (or manslaughter). (6) Despite assurances from Union Carbide representatives that the corporation would face trial in India as and when the justice system required, it has failed to do so. Carbide has ignored several summons to appear for trial, including one published in the Washington Post (February 21st, 1992). The Union Carbide Corporation is now officially considered an “absconder” (fugitive from justice) by the Indian Government.

The Summons for Carbide
The Summons for Anderson
Anderson's Arrest Warrant

If found guilty in criminal proceedings, Union Carbide could be sentenced to a fine which has no upper limit. Such penalties are decided based upon the magnitude of the crime (in this case, the world's worst industrial disaster), the stature and ability of the accused party to pay (Dow-Carbide is the world's largest chemical corporation) and the current state of the victims.

Dow Chemical, Carbide’s new owner, has stated publicly that it has no intention of surrendering its subsidiary for trial. In December 2003, Dow’s spokesperson was quoted as saying that “their position on the matter is that the Indian government has no jurisdiction over [them]; therefore, they are not appearing in court.”

By refusing to surrender its subsidiary for trial, Dow has placed itself in the legal position of harboring a fugitive. And while Union Carbide no longer has assets in India (which could be seized to compel its appearance for trial), Dow has at least four major subsidiaries in the country. In January 2005, the Chief Judicial Magistrate’s court in Bhopal sent a summons to Dow’s US headquarters, asking it to show cause to the court why Dow’s Indian assets shouldn’t be seized to compel Carbide’s appearance for trial.

Of Death in Bhopal and Dinner in Babylon

The Discovery of Warren Anderson

"I told you, we are giving a dinner party, and it isn't even catered"

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The Case Against Warren Anderson
Warren Anderson, Carbide’s CEO from 1982-1986, exercised managerial control and supervision over the operations of Union Carbide India Limited through a single executive intermediary. The Bhopal plant was directly under the managerial control and supervision of the Director of Union Carbide's Agricultural Products Corporation who, in turn, was an Executive Vice-President of Union Carbide and answered directly to Warren Anderson.

As both Chairman of the Board and Chief Executive Officer, Anderson was directly involved, approved and ratified the double standards in design, safety and operations by which Union Carbide imposed at UCIL inferior and inherently dangerous conditions compared with those it chose to establish at its Institute, West Virginia factory.

Anderson was personally aware of and involved in the economy drive of Union Carbide's "Bhopal Task Force" to salvage the plant's financial viability. (7)

1982 May: Union Carbide inspection team indicated that the plant at Bhopal, India was unsafe. The report of the Tyson safety audit team This report, which was forwarded to Union Carbide's management in the United States, speaks unequivocally of a "potential for the release of toxic materials" and a consequent "runaway reaction" due to "equipment failure, operating problems, or maintenance problems." The safety audit team also noted a total of 61 hazards, at least 30 of which were major and 11 of which were specifically identified as hazards in the MIC/ phosgene units.

1984 September: An internal Union Carbide memo warned of a "runaway reaction that could cause a catastrophic failure of the storage tanks holding the poisonous [MIC] gas" at the Institute, West Virginia plant. The memo was released in January 1985 by U.S. Representative Henry Waxman (D-CA), Chairman of the House Health and the Environment Subcommittee.

Anderson just off the golf links

There is prima facie evidence that Anderson knew or should have known about safety conditions in the Bhopal plant and failed to take remedial action before the disaster occurred. Carbide policy states that the CEO is to be notified whenever a serious personal injury or fatality to a Carbide worker occurs. Anderson was informed or should have known about Ashraf Khan’s 1982 death at the Bhopal plant from a gas leak; the response was to send the above-mentioned safety audit team to Bhopal, once again with the knowledge of the CEO. The Tyson report was sent to the CEO's office for remedial action, which was not taken.

In the wake of the disaster, Anderson flew to Bhopal as a PR stunt. There he was placed under house arrest and charged by the Indian authorities with "culpable homicide" (manslaughter). Although Anderson was later released on bond and allowed to leave the country, he promised to return to face any criminal proceedings. He did not. After Anderson ignored multiple summons to appear for trial, including one published in the Washington Post (January 1st, 1992), the Indian Government issued an arrest warrant, circulated through Interpol. Anderson then went into hiding.

In 2002, Anderson was discovered living a life of luxury in the Hamptons, an exclusive beach resort not far from New York. In May of 2003, the Indian Government requested his extradition, but the request was rejected in July of 2004 by the US Government. India plans to re-submit the request; Anderson is still considered an “absconder” (fugitive from justice) by the Indian Government. If extradited and convicted of the deaths of 20,000 Bhopalis, Anderson faces ten years in prison.

Warren Martin Anderson

Born 29th November 1921.
6'2" 210 pounds. Colour of hair - White
Majored in Chemistry in 1942 from Colgate. Joined Navy, discharged in 1945. Studied law.
Wife Lillian Anderson, former school teacher, no children.
Joined Union Carbide Corporation in 1945 as salesman and became its President in 1979 and Chairman in 1982. Retired in 1986.

Chronology of the Case
December 3, 1984 - First Information Report (FIR) on the disaster filed at Hanumangunj police station, Bhopal.
December 7, 1984 - Anderson along with Indian officials arrested in Bhopal and released on bail; Anderson escorted to New Delhi on a special government aircraft and allowed to leave the country.
December 1, 1987 - Central Bureau of Investigation (CBI) files charge sheet against Warren Anderson, chairman of UCC, and eleven other accused including UCC (USA), Union Carbide (Eastern) Hong Kong, and UCIL. Anderson is charged under Indian Penal Code sections 304 [culpable homicide, punishable by 10 years to life imprisonment and fine], 320 [causing geievous hurt punishable by 10 years to life imprisonment and fine], 324 [causing hurt, punishable by 3 years imprisonment and/or fine] and 429 [causing death and poisoning of animals, punishable by 3 years imprisonment and/or fine].
September 24, 1988 - One of several summons served on Anderson through Interpol.
November 2, 1988 - Erle Slack, spokesman at Union Carbide, Danbury says "Indian courts have no jurisdiction over Mr. Anderson or the company."
February 9, 1989 - CJM, Bhopal, proclaims Anderson an absconder for repeatedly ignoring summons and directs him to be present in Court on March 31, 1989.
February 14-15, 1989 - While the matter relating to payment of interim compensation was being heard before the Supreme Court of India, UCC and the Government of India (GOI) reached a settlement. The settlement stipulated inter alia that UCC would pay US $470 million as compensation and the GOI would withdraw the criminal cases instituted against the accused in the Bhopal gas leak disaster case. There was much public protest against the unjust settlement followed by filing of a number of review and writ petitions against the settlement in the Supreme Court by survivors organizations and solidarity groups.
October 3, 1991 - Supreme Court of India revoked criminal immunity granted to Anderson and all other accused in the Bhopal gas leak disaster case in response to review and writ petitions. Union Carbide describes the Supreme Court of India's final order on lifting criminal immunity as "unfortunate".
November 11, 1991 - Criminal cases against all the accused including Warren Anderson revived in the Chief Judicial Magistrate (CJM)'s Court at Bhopal.
December 7, 1991 - Proclamation issued by CJM, Bhopal ordering Warren Anderson - accused No.1; UCC (USA) - accused No.10; and UCE (Hong Kong) - accused No.11; to present themselves before the CJM on February 1, 1992.
January 1, 1992 - Proclamation for Anderson's appearance in the Court of the CJM, Bhopal published in the Washington Post.
February 1, 1992 - The CJM declares Anderson, UCC (USA) and Union Carbide Eastern (Hong Kong) as absconders for non-appearance in the criminal case. The CJM orders attachment of Anderson's property.
April 10, 1992 - CJM, Bhopal issues non-bailable warrant of arrest against Warren Anderson and orders the Government of India to seek extradition of Anderson from the United States.
April 19, 1992 - Opposition parties question government in the Parliament on initiation of extradition proceedings against Anderson.
September 29, 1992 - CJM Anil Chaturvedi directs CBI to expedite extradition proceedings against Warren Anderson.
December 8, 1993 - Minister of State for Chemicals and Fertilizers, Mr. Eduardo Faleiro tells the Indian Parliament "CBI has prepared documents along with affidavits for the extradition of Mr. Warren Anderson, former UCC Chairman, in connection with the Bhopal gas disaster."
November 19, 1996 - CBI for the first time filed a statement before the CJM, Bhopal on the steps taken in the matter of extradition of Warren Anderson stating that the matter of extradition was being re-examined in the light of the Supreme Court judgment dated 13.9.1996.
August, 2002 – Anderson found living a life of luxury in the Hamptons, an exclusive beach resort not far from New York.
May, 2003 – The Government of India formally requests Anderson’s extradition from the US Government.
July, 2004 – Anderson’s extradition request formally rejected by the US Government.

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Dow Lies

"If you define 'liability' simply as the ability to lie, than Dow's in liability up to its ears."

Like any self-respecting criminal, Dow has prepared its story - neatly fashioned into small soundbites.

In November 2000, Dow’s newly elected President and CEO Michael Parker, in his first media briefing, said: “Clearly, we’re enormously aware of Bhopal and the fact that particular incident is associated with Union Carbide, [but Union Carbide has] done what it needs to do to pursue the correct environment, health, and safety programs.” (8) Putting things more bluntly, Kathy Hunt, Dow’s Public Affairs specialist, said in July of 2002 that “$500 is plenty good for an Indian.”

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Lie #1: No Liability
Both were referring to a 1989 settlement between Union Carbide and the Indian Government for $470 million. Dow furiously asserts the settlement resolved all liabilities. "There was a 1989 settlement that resolved all civil, criminal charges," Dow’s CEO, William Stravropoulos, lied from the floor of Dow's 2004 Shareholder Meeting. "The Supreme Court of India upheld this and said it was fair, just, and equitable." A statement posted on the Dow website echoes his comments: before acquiring Union Carbide, Dow "conducted an exhaustive assessment to ensure there was absolutely no outstanding liability in relation to Bhopal," the statement reads. "There was none; the company Dow acquired retained absolutely no responsibility for either the tragedy or for the Bhopal site." "There is no legal foundation for application of liability," John Musser, Dow's spokesman, is quoted as saying. "Union Carbide resolved their liability in regards to the Bhopal tragedy," he said, "so when we purchased their shares, there was no liability left."

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Lie #2: The Liability is Carbide’s, not Dow’s
Although Dow accepted Union Carbide's asbestos liabilities, setting aside fully $2.2 billion to resolve all claims, (9) Dow continues to maintain, contrary to US, Indian, and International Corporate Law, that it acquired the assets of Union Carbide without its liabilities. "Union Carbide remains as a subsidiary of Dow, with its own board of directors, and its own assets and liabilities," John Musser was quoted as saying. "Stock ownership does not equal responsibility for those who acquired the stock. ... For example, if you own stock in Ford, and someone rolls over in a Ford and sues Ford, you cannot be sued because you hold stock in Ford, regardless of whether or not negligence occurred." However, Carbide now operates as a supplier to Dow’s businesses alone and retains a boardroom constituted of Dow managers and executives. Carbide’s headquarters in Danbury, Connecticut have been sold to the pharmaceutical giant Boehringer. Within Dow’s official regulatory filings, Carbide’s business activities are said to “comprise components of Dow’s global businesses rather than stand-alone operations.” Essentially, Carbide is Dow is Carbide.

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Lie #3: No Jurisdiction
So what if there is criminal liability? Dow won’t send Carbide to stand trial anyway. "Union Carbide and Mr. (Warren) Anderson, the former CEO, are named in [the criminal lawsuit]. They have not come forward. Their position on the matter is that the Indian government has no jurisdiction over Union Carbide or Mr. Anderson; therefore, they are not appearing in court," Musser bluntly declared.

Lie #4: It's the Government's problem
On its propaganda website, bhopal.com, Dow claims that "In 1998, the state government of Madhya Pradesh revoked Eveready Industries's lease on and took possession of the facility and publicly assumed all accountability for the site, including the completion of any further remediation."


The District Industries Center letter "revoking" UCC's lease

That’s a rather twisted interpretation of events. The fact is that Eveready Industries India Limited’s “escape” from the site remains unrecognized by the MP Government, and was precipitated by a bureaucratic error. In 1998, EIIL were in the middle of a remediation programme, supervised by the Madhya Pradesh Pollution Control Board (MPPCB). Without communicating its intentions to the MPPCB, the District Industries Centre gave EIIL 10 days to return the lease, citing the fact that they weren’t using the site for industrial purposes any longer. At best the notice was in error, at worst the product of illicit bribery. But EIIL was quick to drop their tools and leave, and when the MPPCB demanded they come back and clean up they refused.

There's a telling chronology to the aftermath of this saga this that taken together makes a mockery of Dow's assertion of governmental assumption of responsibility:

July 28, 1998: the MP govt issued a statement that, "The State govt will ENSURE safe disposal of the residual Sevin Tar and Napthol Tar from the factory. This will be done in consultation with the NEERI-Nagpur and IICT-Hyderabad." (emphasis added)

It is to this statement that Dow perpetually alludes but never actually produces as evidence. The State government isn't saying it will undertake the work itself, just that it will make sure it's done, and with proper professional scrutiny. The work only mentioned only entails surface wastes and does not encompass a comprehensive remediation programme. EIIL itself had paid for the consultation of NEERI and the IICT at the behest of the MPPCB.

Feb 1999: The MPPCB, who have been consistent in requiring EIIL/UCIL to remediate the site, write to the site manager CK Hayaran demanding that the work be done as per Management and Waste Handling Rules, 1989, and citing in so many words the polluter pays principle.

Oct 19, 2002: The MP govt. announces it will approach the Supreme Court and Centre govt. in order to hold Dow accountable for remediation. (10)

February 5, 2003: The MP govt. advises the Central Pollution Control Board to recover costs of clean up from Dow and Eveready Industries India ltd (EIIL). The MP govt. argues that EIIL is still the occupier of the factory site and owner of its contents because of the absence of a formal hand over to the District Industries Center.

June 7, 2004: The MP govt. submits a formal letter to the Indian Government in response to a NY court case (Bano v Union Carbide) in which it states that the policy of the government regarding remediation is that “The State Government shall not bear any financial burden for this purpose. The disposal of the chemical waste shall be at the cost of Union Carbide.”

June 28, 2004: The Central Government of India submits a formal notice before the Southern District Court of New York (the venue for Bano) in which it states as its official policy that "Pursuant to the ‘polluter pays’ principle recognized by both the United States and India, Union Carbide should bear all of the financial burden and cost for the purpose of environmental clean up and remediation."

July 15, 2005: counsel for the Union govt., acting in the MP High Court PIL, seeks a court directive to UCC, Dow and EIIL that they deposit Rs. 100 crores (about $22 million) for site remediation costs.

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The Dow banner hangs from the New York Stock Exchange

Shareholders Not Buying It
None less than Forbes Magazine has called Dow’s purchase of Carbide “a mistake” because of Bhopal’s lingering liabilities. (11) During the administration of the merger, as part of their official filings to the Securities and Exchange Commission in the US, Dow and Union Carbide officials stated: “there are no…criminal…actions, suits, claims, hearings, investigations or proceedings pending…No investigation or review by any Government Entity with respect to it or any of the subsidiaries is pending.” This incredible statement outraged many of the company's shareholders, several of whom filed suit in 2001 to stop the merger. Other shareholders, led by Boston Common Asset Management but including the Church of the Brethren Benefit Trust, the Sisters of Mercy Reg. Community of Detroit Charitable Trust, and the Sisters of the Holy Cross of Notre Dame, Indiana, filed a shareholder's resolution with Dow in 2004, asking Dow for full disclosure of the impacts the Bhopal matter may pose to the company, its reputation, its finances, and its expansion in Asia. The resolution closely followed the release of an April, 2004 report by Innovest Strategic Value Advisors entitled Dow Chemical: Risks for Investors, which stated that Dow faces "significant unreported, or underreported environmental risks." The report details Dow's failure to disclose liabilities relating to Bhopal, Agent Orange, Dursban, and dioxin in its SEC filings and statements to shareholders. The disclosures of this report and Dow's continued misrepresentations on its website and at its 2004 Shareholder's Meeting prompted a coalition of Dow shareholders, including Boston Common and Trillium Asset Management, to file an August, 2004 letter with the SEC, alleging material misstatements and asking the SEC to investigate. “These statements and omissions raise an array of concerns regarding the company’s compliance with SEC rules and guidelines as well as with the Sarbanes Oxley Act,” Sanford Lewis, the attorney representing Boston Common and Trillium, stated. "Investors need honest projections of potential liability, not comments filtered through rose-colored lenses," said Shelley Alpern of Trillium Asset Management.

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Read an interview with Raj Sharma, the attorney for the Bhopal victims in their New York civil lawsuit, as he describes the significance of Carbide's internal documents. For more about Dow's unreported liabilities, please see Dow Chemical: Risks for Investors, a report by Innovest Stategic Value Advisors. A legal chronology is available here.

 


Endnotes

(1) According to Union Carbide’s own documentation, obtained through discovery in the New York civil suit. Much of this documentation is available online, at http://www.bhopal.net/poisonpapers.html. See also New Scientist Magazine. “Fresh evidence on Bhopal disaster.” December 2, 2002. Available at: http://www.newscientist.com/news/news.jsp?id=ns99993140. And: The Financial Express. “Global Funds Tell Union Carbide To Settle Bhopal Gas Leak Claims.” Ajay Jain, December 5, 2002. Available at: http://www.financialexpress.com/fe_full_story.php?content_id=23259.

(2) See The New York Times. “Union Carbide Had Been Told of Leak Danger.” Philip Shabecoff, January 25, 1985. See also The New York Times. “1982 Report Cited Safety Problems at Plant in India.” Thomas J. Lueck, December 11, 1984. Also: The Christian Science Monitor. “Confidential Indian report blames both US firm and subsidiary for Bhopal disaster.” Mary Anne Weaver, March 26, 1985. And: Time Magazine. “Clouds of Uncertainty; For Bhopal and Union Carbide, the tragedy continues.” Pico Iyer, December 24, 1984.

(3) See The New York Times.“Discrepancies are Seen in Bhopal Court Papers.” Stuart Diamond, January 3, 1986.

(4) See Section 65 of the Amended Class Action Complaint before the Southern District Court of New York, the full text of which is available at: http://www.bhopal.net/oldsite/amendedplaint.html.

(5) Quoted in Chemical and Engineering News, April 8th, 1985. See also The New York Times. “Bhopal Seethes, Pained and Poor 18 Years Later.” Amy Waldman, September 21, 2002. And: New Scientist Magazine. “Fresh evidence on Bhopal disaster.” December 2, 2002. Available at: http://www.newscientist.com/news/news.jsp?id=ns99993140.

(6) Anderson and Union Carbide both stand accused of culpable homicide (manslaughter), grievous assault, poisoning and killing of animals and other offenses. See The Washington Post. “India Seeks to Reduce Charge Facing Ex-Union Carbide Boss.” Rama Lakshmi, July 8, 2002. See also the BBC. “India to Extradite Bhopal Boss.” September 6, 2002. Available at: http://news.bbc.co.uk/2/hi/business/2240895.stm.

(7) Clemens Work, "Inside story of Union Carbide's India Nightmare," US News & World Report, Jan. 21, 1985.

(8) See the Financial Times (London), Sept. 14, 2000.

(9) See Dow’s 4th Quarter, 2002, financial summary, available at: http://www.dow.com/financial/pdfs/noreg/161-00587.pdf. By way of comparison, technical guidelines drawn up by Greenpeace scientists in 2002 and handed over to Dow Chemical and the Indian government indicate that a cleanup of Bhopal would cost somewhat over $500 million. See Technical Guidelines for Cleanup at the Union Carbide India Ltd. (UICL) Site in Bhopal, Madhya Pradesh, India. Greenpeace Research Laboratories, University of Exeter, October 2002. Available at: http://www.studentsforbhopal.org/GP.TechGuidelines.pdf.

(10) See The Indian Express "MP wants DOW to clean up Carbide mess, State to approach Centre for Supreme Court intervention" by Hartosh Singh Bal, October 19, 2002

(11) See Forbes Magazine. "Dow's Pocket Has a Hole" by Phyllis Bergman, March 31, 2003. Available at: http://www.forbes.com/global/2003/0331/034.html.

 

 

 


The international student campaign to hold Dow accountable for Bhopal, and its other toxic legacies around the world.
For more information about the campaign, or for problems regarding this website, contact
Shana Ortman, the US Coordinator for the International Campaign for Justice in Bhopal.
Last updated: November 12, 2008

WE ALL LIVE IN BHOPAL

"The year 2003 was a special year in the history of the campaign for justice in Bhopal. It was the year when student and youth supporters from at least 30 campuses in the US and India took action against Dow Chemical or in support of the demands of the Bhopal survivors. As we enter the 20th year of the unfolding Bhopal disaster, we can, with your support, convey to Dow Chemical that the fight for justice in Bhopal is getting stronger and will continue till justice is done. We look forward to your continued support and good wishes, and hope that our joint struggle will pave the way for a just world free of the abuse of corporate power."

Signed/ Rasheeda Bi, Champa Devi Shukla
Bhopal Gas Affected Women Stationery Employees Union
International Campaign for Justice in Bhopal