Is there groundwater contamination at the site?
According to media reports, various groups have made assessments of the groundwater quality at the Bhopal site through the years. These reports have had varying conclusions. In a report to the State of Madhya Pradesh dated June 2010, India's National Environmental Engineering Research Institute concluded that the "groundwater in general is not contaminated due to seepage of contaminants from the UCIL" plant site. This conclusion is consistent with NEERI's earlier findings that all groundwater samples tested were within drinking water standards.
Who should clean-up the Bhopal plant site?
Responsibility for the clean-up of the Bhopal site lies with the Madhya Pradesh State government. In 1998, more than a decade ago and several years before UCC became a subsidiary of TDCC, the Madhya Pradesh State Government, which owned and had been leasing the property to Union Carbide India Limited (UCIL), took over the facility and assumed all accountability for the site, including the completion of any additional remediation. To the extent that the owner/operator of the plant is determined to be responsible, that entity would be Eveready Industries India Limited, formerly known as UCIL, which owned and operated the facility until it closed in 1984 and which remains an ongoing company in India today.
The Bhopal plant site remediation is currently the subject of litigation in the United States, as well as separate litigation in the High Court, State of Madhya Pradesh. In Janki Bai Sahu v. UCC, a 2004 case filed in the New York District Court against UCC, the U.S. Second Circuit Court of Appeals agreed with the judgment of a lower court, finding in June 2013 that UCC is not liable for any environmental remediation or related site environmental consequences at the Bhopal plant site in India. In dismissing the case against UCC, the lower court reviewed hundreds of documents submitted by both sides in the case. The Court of Appeals said: “[M]any others living near the Bhopal [India] plant may well have suffered terrible and lasting injuries from a wholly preventable disaster for which someone is responsible. After nine years of contentious litigation and discovery, however, all that the evidence in this case demonstrates is that UCC is not that entity.” TDCC was not sued in that case.
No liability determinations have been made in the India proceeding. The 2010 Curative Petition which has not been brought to hearing also seems to seek recovery of those same costs, unrelated to the 1984 gas leak, to clean-up the old Union Carbide India Limited (UCIL) plant site. The State, however, is in the best position to evaluate all available scientific information, to complete whatever remediation may be necessary and to make the right decision for Bhopal. In 2010 the Ministry of Chemicals and Fertilizers of the Government of India announced that the clean-up would be undertaken and completed by the state of Madhya Pradesh. This commitment should be honored.
Some say that the amount of funding needed to help survivors and their families was underestimated in the initial settlement. If that is so, and if more money is needed, will it come from The Dow Chemical Company (TDCC) or Union Carbide (UCC)?
Putting aside that TDCC had nothing to do with the 1984 tragedy and was not a party to the 1989 agreement, the Supreme Court of India has previously considered and rejected the argument that additional funds might be required by any parties to the settlement agreement. The settlement of $470 million, which ultimately resulted in payouts to victims of nearly double that amount, was negotiated between the Government of India and UCC, Union Carbide India Limited (UCIL) and approved by the Supreme Court of India. In 1989, 1991 and 2007, the Court considered the adequacy of the settlement, ruling each time that it was adequate. In its 1991 reaffirmation of the 1989 Bhopal settlement, the Court required that the Government of India be responsible for any potential shortfall in the settlement account (Page 682, paragraph 198 of the Court’s ruling of order dated October 3, 1991) and for acquiring a medical insurance policy to cover 100,000 people who might later develop symptoms shown to have resulted from being exposed during the gas Release (Pages 684-686, paragraph 205-208, order dated October 3, 1991).
Indeed, as recently as 2006, the Government of India filed an affidavit with the India Supreme Court asserting that the settlement was appropriate and reasonable and that it should not be revisited. In its 2007 decision, the India Supreme Court agreed with this view. At that time, it was noted that the actual amount awarded to individuals and families had been higher than prescribed, with no new claimants stepping forward. In fact, the Government of India, through its Welfare Commissioner, reaffirmed the fairness and completeness of the 1989 settlement agreement and its implementation in November 2010. [Again, PDFs of the Government of India affidavits of 2006 and November 2010 available upon request].
Is The Dow Chemical Company (TDCC) willing to be part of a voluntary humanitarian effort to clean up the site?
Issues related to Bhopal are not TDCC's responsibility. Where there remain issues to be addressed as a result of this 30-year-old tragedy, they need to be resolved by the Indian Central and State governments. As part of the settlement with the Union Carbide India Limited (UCIL) and UCC, the Supreme Court of India directed the Union of India to address the welfare and ongoing needs -- should there be any -- of those impacted by the tragedy.
While Dow has no responsibility for Bhopal, our pledge and our commitment is the full implementation of Responsible Care everywhere we do business around the world. Additionally, as a company doing business in India, Dow India does contribute to collaborative development efforts in India including:
- Funding and participation in the Habitat for Humanity’s building projects in India.
- Providing supplies of artificial limbs, free of cost, through India’s Jaipur Foot Initiative.
- Educating the masses through the “Multiply the Message” program.
If The Dow Chemical Company (TDCC) is not responsible to the victims of the gas release, who is responsible?
In its 1991 affirmation of the 1989 settlement between the Union of India, UCC and Union Carbide India Limited (UCIL), the Supreme Court required that the Government of India be responsible for any potential shortfall in the settlement account (Page 682, paragraph 198 of the Court’s ruling of order dated October 3, 1991) and for acquiring a medical insurance policy to cover 100,000 people who might later develop symptoms shows to have resulted from being exposed during the gas release ( Pages 684-686, paragraph 205-208, order dated October 3, 1991.)
What role has the Government of India played in the aftermath of the Bhopal Tragedy?
In its 1991 reaffirmation of the 1989 Bhopal settlement, the India Supreme Court required the Government of India to make up for any potential shortfall in the settlement amount (See page 682, paragraph 198 of the Court’s ruling on Bhopal.com) and to acquire a medical insurance policy to cover 100,000 people who might later develop symptoms shown to have resulted from being exposed during the gas release (See pages 684-686, paragraph 205-208). The Government of India did not challenge these directives from the Supreme Court when this ruling was issued. In fact, the 1991 Review Petitions challenging the settlement were filed by non-governmental organizations (NGOs) representing survivors, and not by the Government of India.
After the case was settled, the settlement funds were paid to the Government of India and the Government devised and administered the compensation scheme, including determining the validity of the claims it received.
As it happens, there was no shortfall. In fact, the settlement fund was sufficient to compensate all qualified claimants at double the amounts the Government of India set as fair compensation. Therefore, any question regarding additional payments to those who died, sustained injuries or continue to suffer health effects as a result of the Bhopal tragedy should be directed to the Government of India.
What is the status of Bhopal Litigation in the U.S.?
The Dow Chemical Company (TDCC) is not a party to Bhopal litigation in the United States. In June 2013, the U.S. Court of Appeals for the Second Circuit agreed with a 2012 judgment of a lower court, finding that Union Carbide Corporation (UCC) is not liable for any environmental remediation or related site environmental consequences at the Bhopal plant site in India, which was formerly owned by Union Carbide India Limited (an entity that had been partially owned by Union Carbide). In dismissing the case against UCC, the lower court reviewed hundreds of documents submitted by both sides in the case.>
In its written decision, the Court of Appeals noted: “[M]any others living near the Bhopal [India] plant may well have suffered terrible and lasting injuries from a wholly preventable disaster for which someone is responsible. After nine years of contentious litigation and discovery, however, all that the evidence in this case demonstrates is that UCC is not that entity.” The case – Janki Bai Sahu versus Union Carbide – originally was filed in November 2004. The suit sought damages for alleged personal injuries from exposure to contaminated water; remediation of the former Union Carbide India Limited (UCIL), plant site; and to hold UCC liable for the acts of UCIL. Additional information may be found at www.bhopal.com.
A separate case – Jagarnath Sahu et al v. UCC and Warren Anderson – filed in 2007 in New York District Court seeks damages to clean-up six individual properties allegedly polluted by contaminants from the Bhopal plant, as well as the remediation of property in 16 colonies adjoining the plant. This suit, which had been stayed pending resolution of appeals in Janki Bai Sahu case, is the last remaining Bhopal-related case before U.S. Courts. UCC moved for summary judgment in this case and on July 30, 2014 the United States District Court ruled in favor of UCC, essentially on the same basis as was used in the earlier-filed Sahu case.
What about the “new evidence” the claimants’ lawyers have brought to the U.S. court which they claim shows that Union Carbide (UCC) is responsible for plant site contamination?
The “new” evidence either is not new or is not credible, and UCC has addressed it fully in responding to the plaintiffs in the Sahu case. In any event, the so-called “new” evidence does nothing to implicate The Dow Chemical Company. The District Court declined to give weight to this argument, ruling that it could not keep the litigation against UCC alive and as a result dismissed the case.
When will Union Carbide (UCC) have finality with respect to the Bhopal Settlement Agreement?
This was finally, and fairly resolved in 1989, and adequacy of the settlement was confirmed by the Indian Supreme Court in 1991 and 2007.