Bhopal gas tragedy exposed how systems of corporate liability remain grossly inadequate in a world that uses high-risk technology
It was on the night of December 2, 1984, when Bhopal died a million deaths. The chemical, methyl isocyanate (MIC), that spilled out from Union Carbide India Ltd’s (UCIL’s) pesticide factory turned the city into a vast gas chamber. People ran on the streets, vomiting and dying. The city ran out of cremation grounds. It was India’s first (and so far, the only) major industrial disaster. Till then, governments had handled floods, cyclones and even earthquakes. They had no clue how to respond in this case. The US-based multinational company, Union Carbide Corporation (UCC), which owned the plant through its subsidiary UCIL, did little to help deal with the human tragedy. Thirty years later, there is no closure. Not because of what happened that fateful night, but because our response has been incompetent and callous.
Bhopal was struck by two tragedies: the one that happened immediately, and the other that unfolded in the years that followed.
The problem was nobody knew much about the toxin or its antidote. Within weeks of the accident many claimed that the worst was over—that people were suffering from common ailments of the poor, such as tuberculosis and anaemia. But till date nobody knows the health impacts of MIC and how to treat patients exposed to the gas. The health burden is compounded by two more variables—one, children born after the disaster are also its victims because of exposure to the deadly gas while they were in their mothers’ wombs; two, chemical wastes remain dumped in and around the premises of UCIL factory, contaminating the water that people drink.
All this could have been managed if the government had information about the chemical and treatment for it. But even in 2014, all that the Indian Council of Medical Research (ICMR) in Delhi can say is the “exact causative agent of the Bhopal Gas Disease is unknown”. Why?
Union Carbide used trade secrecy as a prerogative to withhold information on the exact composition of the leaked gases. Though it was known that MIC, when reacts with water at high temperatures, could release as many as 300 highly toxic chemicals, research was carried out only to check the toxicity of pure MIC—that also on animals. So, the treatment has been symptomatic. This is criminal negligence. In the first few days, there was evidence that people could be suffering from cyanide poisoning—intravenous injections of sodium thiosulphate, an antidote, was found to be working on the patients. But soon, it was discontinued, many say, under pressure from UCC and its team of lawyers.
The diseases could also have been managed had the government conducted medical research to understand the long-term impacts of the gas. The responsibility was given to ICMR, which had initiated 24 studies.Some of the studies had found high incidence of lung, eye disease and morbidity in the victims. But the studies were summarily discontinued in 1994. All research work was left to Madhya Pradesh government’s Centre for Rehabilitation Studies, which did some uninspired research. Meanwhile, some independent studies had also pointed to serious health crises, from cancer and mental problems to birth defects. But since there is no epidemiological study, it is easy to dismiss these as ailments caused by poverty and lack of hygiene. This is when the Supreme Court has repeatedly asked for the patient records to be computerised and for studies to determine health impacts of this toxic exposure.
Ongoing struggle for relief
In 1989, UCC paid some US $470 million (worth Rs 750 crore that year. Then the rupee devalued. This, along with interest, swelled to Rs 3,058.40 crore by 2009) as compensation for the disaster—one-seventh of the original demand from the Indian government. In return, under the Supreme Court brokered deal, all civil and criminal cases against the company were terminated. The apex court also laid down guidelines for the money—the family of the dead were to be given Rs 1-3 lakh, which was three times higher than compensation for deaths in motor vehicle accident cases, said the court. In addition, fully or partially disabled were to get Rs 50,000-2 lakh and those with temporary injury, Rs 25,000-1 lakh.
When the case began, the government said there were some 3,000 deaths and 30,000 cases of injury. Later, it was realised that many more were suffering from exposure to the poisonous gas. So, when the case was decided, compensation was doled out to virtually the entire city. Some 573,588 people got money as “affected” by the gas leakage—many times above the number of claims filed, and representing some 70 per cent of the city population in 1980. Of them, 5,295 were death cases, in which families of the victims got a paltry Rs 2-3 lakh as compensation. The rest—568,293—were classified as injured. As the government deducted what was paid over six years as interim relief, the final settlement was less than Rs 15,000 per victim.
This meant nothing to the victims whose medical bills have continued to mount. They say many deaths have not been counted. But courts and governments have continued to dismiss their plea to reopen the case of compensation settlement. Then in 2010, the Group of Ministers (GoM) on the Bhopal gas tragedy decided that it would only agree to enhance payments to the already counted victims. It agreed to an additional compensation of Rs 10 lakh in the 5,295 cases of death and Rs 1 lakh-5 lakh in the cases of disability, renal failure and cancer. But it added that the amount already paid should be deducted. The affected who have lost their lives and livelihoods say the GoM only rubbed salt in their wound— paid compensation to people who are not affected and neglected the many who suffer every day as they are not listed among those with serious and permanent disability.
Bhopal disaster 2.0
People of Bhopal are suffering another legacy of UCIL. The factory used to manufacture three pesticides: carbaryl (trade name Sevin), aldicarb (trade name Temik) and a formulation of carbaryl and gamma-hexachlorocyclohexane (g-HCH), sold under the trade name, Sevidol. For 15 years till the disaster, it dumped process wastes, by-products, solvents, sub-standard products, wastes from machinery and polluted water at dump sites inside and outside the plant. Another 350 tonnes of waste has been kept in a leaking shed at the site. These wastes are still lying at the site, polluting soil and groundwater. This second legacy—Bhopal Disaster 2.0—now threatens even a larger number of people than the first one. Many of the chemicals degrade slowly and are likely to remain in the environment for hundreds of years. They will keep spreading unless they are taken out and the site is decontaminated.
The worst part is cleaning and decontamination of the site has got embroiled in legal wrangles of how to clean the site, what should be done with the wastes and who should pay for it— state governments, the Centre, successor buyer of the factory, Dow Chemical, waste disposal and incineration companies, research institutes or non-profits.
In the past few years, particularly since the release of a study by Delhi non-profit Centre for Science and Environment (CSE) and the Central Pollution Control Board (CPCB), another controversy has erupted—whether or not the contamination has spread through groundwater. Most studies found groundwater surrounding the UCIL site to be contaminated with chlorinated benzenes and HCH isomers. Carbaryl, aldicarb, carbon tetrachloride and chloroform were also detected in some studies. All these can be linked to the wastes dumped by UCIL plant.
But in a study in 2010 by two key government institutes—National Environmental Engineering Research Institute (NEERI) and National Geophysical Research Institute (NGRI)—no groundwater contamination was found. These institutes only found isolated contamination, which they attributed to the annual surface runoff during monsoon. They concluded that due to extremely low permeability of the black and yellow silty clay, there is limited movement of contaminants towards the groundwater. Interestingly, this type of soil was only found at UCIL site. In surrounding areas, other studies have found far higher permeability. The implication of NEERI-NGRI study is huge. If the site is unique, and hence there is no groundwater contamination happening from the site, then the site can be cleaned-up easily and at a much lower cost. If that is not the case, then groundwater too will have to be decontaminated, which will be very expensive.
From the very beginning, UCC has shed its liability towards its Indian subsidiary, arguing that it had nothing to do with the disaster. As recently as August 2014, the US courts decided that UCC (and so Dow chemical) cannot be held responsible for the management of the Indian subsidiary. But one case still continues. In 2004, a resident of Bhopal, Alok Pratap Singh, filed a case in the Madhya Pradesh high court, demanding Dow be held responsible for the pollution. The Union government supported this position by filing an application in this case and asking Dow to deposit Rs 100 crore for environmental remediation. Dow has continued frantic lobbying to get the Indian government to withdraw its application—with everyone from industrialist Ratan Tata to former chairperson of the Planning Commission, Montek Singh Ahluwalia, and former finance minister, P Chidambaram, petitioning on behalf of the company.
But as of now, the high court has not deleted Dow from the list of respondents. So, maybe, in this case, the liability of the company, at least in terms of the hazardous waste it has left behind, will be established. The company will be required to pay for remediation or restoration at the very least. Then maybe, just maybe, the victims of Bhopal will get some closure. After 30 years.
WHY NO CLOSURE
This is because everything that could have gone wrong in the initial years after the tragedy went wrong. After this, all that the people and activists have done is to try and reverse those fatally damaging actions—with little success.
The Indian judiciary succumbed, many would say, by agreeing to a paltry compensation and by settling all civil and criminal liability of the company. Then the company did everything to ensure that its complicity and responsibility was diluted. One such instance is of not informing doctors of the real toxicity of the chemicals released and the treatment for them. ICMR failed the victims by not completing the studies that would have established the cause of their ailments and suggesting treatment protocols. So, there is a name for the disease—Bhopal Gas Disease—but no identification of who the affected are or what their treatment status is. The Union government, as a result, continues to argue that only 5,295 people died—in the first instance and never later—and 6,199 have been permanently disabled. It refuses to accept, without medical history, that the tragedy has been much more enormous and that death and disability stalk every house in the localities close to the factory. The state government put the final nail in their coffin by distributing the compensation amount so widely that it does not matter who is the actual victim and who is not.
But there are more reasons for the failure. First, there are too many institutions involved, and they have little interest in fixing the problem. In the case of medical relief, on paper, all has been provided to ensure that people get timely and best treatment. A super-speciality hospital has been set up. Treatment has been assured without payment. The Supreme Court even set up two committees—one to monitor the functioning of the medical system and the other to advise on what needs to be done for the best care of the victims. The state government has a separate department for gas relief and usually a senior minister is in charge of the department. Even at the Centre there is a clear mandate with the Ministry of Chemicals and Fertilisers to oversee all affairs. Yet, medical care is abysmal. The victims continue to say they do not even have water to drink.
Take the issue of decontamination. The case is being heard by the Supreme Court and the Madhya Pradesh high court, who issue regular directions in this regard. Then there is a task force for removal of toxic waste from the plant, headed by the secretary of the Department of Chemicals and Petrochemicals at the Centre. An Oversight Committee is coordinating and monitoring activities relating to waste disposal, decontamination and remediation. The minister of state for environment chairs this committee. At the bottom of the rung are the Central and state pollution control boards, that are supposed to monitor the site and provide technical support for the decontamination work. The institutional logjam is such that there is no one institution that can be held responsible and accountable for decontaminating the site.
Secondly, over time, most residents of the city have moved away and beyond the disaster. The civil society groups that remain are intensely committed and driven by the injustice and lack of action. But there is such deep distrust between the government and activists working in Bhopal that every action proposed is obstructed—mainly by taking the matter to court. As national and international media interest remains high in the case, each incident is played out and charges and counter-charges are made on television and in newspapers. The result is everything has been left to the courts to decide; the state and the Central agencies have taken the backseat.
After the 1989 decision, which rewrote history of jurisprudence by absolving UCC of corporate criminal liability, the courts have given directions on relief and rehabilitation. But in the polarised and indifferent environment, even their directions have come to naught. This is partly because there is no clarity about what needs to be done and what can be done given the past mess-ups.
What stands out is that Indian institutions are incapable of resolving conflicts. But there is learning for activists and non-profits. In no way should the fight become an end in itself so that issues remain unresolved.
BHOPALS IN OUR LIFE
The disaster had impacts far beyond the boundary of the ill-fated city and its people. It made a difference worldwide to the way that chemical and hazardous waste management was reinforced; workers’ safety precautions mandated; and legislation for environmental management strengthened. Perhaps, this is why we have not seen another Bhopal-like disaster in the past 30 years.
But the work is not over yet. In India we continue to see smaller industrial accidents—mini-Bhopals. Hazardous wastes are piling up in many parts, contaminating land and water and endangering lives. But we do not have the means or methods to remediate these toxic sites. How do we prevent not just another Bhopal but also the mini-Bhopals from happening?
Laws changed but not followed
The first major legislation that came post-Bhopal was the Environment (Protection) Act (EPA) of 1986. “EPA bears the stamp of the legislature’s immediate concern after Bhopal to strengthen the regulatory framework for hazardous industry and pollution control,” write lawyers, Shyam Divan and Armin Rosencranz, in their critique, Environmental Law and Policy in India. EPA is India’s first legislation that gave authority to the Centre to issue direct orders to close, prohibit or regulate any industry. It is also an enabling law, which delegates wide powers to the executive, allowing it to make rules to manage different issues. Over the years, EPA has been translated into a range of Central rules and regulations, laying down pollution norms and setting rules for the management of hazardous waste.
By 1989, the country got the Hazardous Waste (Management and Handling) Rules for management, storage and import of hazardous chemicals. Even the protection of coastal areas is done under EPA as its subordinate rules. In 1987, amendments were made in the Factories Act, 1948, which empowers states to appoint site appraisal committees to advise on the location of factories using hazardous processes. It also sets up systems for the safety of workers and residents nearby and specifies emergency disaster control plans. In 1991, the Public Liability Insurance Act was enacted to provide for immediate relief to persons affected by accidents while handling hazardous substances. Under the Act, an environment relief fund was set up to compensate affected people.
Despite these legislation in place, India is fast losing the battle of environmental protection and management of hazardous waste.
Take the Factories Act. According to the latest data published by the Ministry of Labour and Employment, in 2011, the total dead and injured in 2011 were 10,441. That year, over 1,000 people lost their lives in factory accidents. Not surprising that the states with the worst worker safety records were the industrialised Gujarat, Andhra Pradesh and Maharashtra. Gujarat was the worst, with close to 250 dead and 3,000 injured. A review of past years’ newspaper reports shows industrial accidents continue to take place across the country. Just in the 10 months of 2014, there are reports of as many as eight industrial incidents, where workers have died or been hospitalised. Many more cases would have gone unreported.
In addition, there is the problem of growing toxic contamination of land and water. This means, even though hazardous waste management rules provide for inventories, storage and safe disposal of such toxic substances, these work more in the breach. As waste continues to stockpile, more areas are contaminated. In 2010, with great fanfare the Union Ministry of Environment and Forests (MoEF) launched a project for remediation of hazardous waste contaminated sites (see ‘Bhopal-like disasters in the making’). A total of 10 toxic sites were identified. Consultants were hired to plan for remediation and the matter has stopped there. These sites hold thousands of tonnes of highly toxic waste—like Bhopal’s UCIL factory.
|Bhopal-like disasters in the making
The problem is institutional management provisions of legislation remain only on paper. For instance, the Chemical Accidents Rule provides for setting up a central crisis group. The information on the website of MoEF, its nodal ministry, shows just how inconsequential this has become for the government. The name and phone number of the head of the crisis group is given as T K A Nair, who was secretary in the mid-1990s. But the group does not exist, not even on paper. This is the real crisis of India. We have set up the framework but have nothing to fill it up with.
Agenda: 30 years hence
To chart this out, let’s understand the situation today. The state pollution control boards are required to give the industry consent to establish and then consent to operate. In addition, they must give authorisations under various EPA rules for plastic, battery, municipal waste and, now, e-waste. But all that the pollution boards do is to process the consent and authorisation. They do not have time to monitor compliance with standards for pollution or enforce their directions. This paperwork—processing consent applications—brings them their main source of income.
Our analysis shows that on an average, a state pollution board collects about one water sample per factory and surveys less than 25 per cent of the units for air quality. In fact, the entire environmental monitoring depends on self-reporting by industries, which are required to get samples of effluents tested in private laboratories and submit the data to the pollution board. It is another matter that the laboratories are, in many cases, extremely inadequate and unskilled. It is another matter that the pollution board officials do not even have time to look at the reports. It is about paperwork, not about controlling pollution. It is not about enforcement.
What really hurts is these self-monitored samples cannot even be used for enforcement. So, even if a report submitted by an industry shows that it exceeds the norms, the board cannot use this for enforcement. Instead, what is required is a cumbersome and highly suspect sampling protocol under which the board officials first have to inform the industry that they will be visiting—time and place—for inspection, and only this sample can be used for enforcement. It is, therefore, no surprise that only 2 per cent of the show cause notices get converted into legal action.
There is also no deterrence in the system. The maximum penalty imposed by courts under the Water (Prevention and Control of Pollution) Act is Rs 10,000 and under EPA, it is Rs 1 lakh. But only courts can impose this penalty. So all the boards can do is to either deny the consent to operate or issue closure notice for 30 days. Both options are not feasible. So, very little is done to act against the polluter. Without effective enforcement, the system is not even worth the paper on which the many forms are filled and filed.
This is the case with clearances—environment, forest, coastal and wildlife—required for projects. These key instruments ensure that environmental damage is mitigated. These procedures have become riddled with processes, but no outcome. In the case of environmental clearances there is a near-zero rejection rate; instead, conditions are set at the time of sanctioning a project knowing fully well that there is no capacity or will to monitor compliance.
Forest clearance is an even bigger paper tiger—94 per cent of projects are cleared without an impact assessment of the project in terms of forest, biodiversity or livelihoods of the many who live in these habitats. Then, it is stipulated that compensatory afforestation will be done for each hectare diverted. But nobody really knows if the trees are even planted, let alone if they survive. The system continues with this farce of taking action—as if laws and processes are enough to make a difference. This can be fixed. Changing this requires strengthening institutions. This is the agenda for environmental governance 30 years after Bhopal.
Today pollution boards have high number of vacancies—from 30 per cent in states like Andhra Pradesh, Haryana and Odisha to 60 per cent in Bihar and Karnataka. The Central Pollution Control Board is without a full time chairperson for the past some years. Working conditions across these institutions is poor. But all governments run away from this agenda. Instead of fixing what is broken, they make new institutions, adding to multiplicity and confusion.
The other agenda is to improve tools for compliance and enforcement. This requires taking hard decisions to decriminalise the current Acts, so that enforcement by civil administration is easier. Everything does not have to go to court for decision. But at the same time it means penalties need to be increased and processes must be made transparent. All this cannot be done unless there is a credible, rigorous system for collecting samples as you cannot hold a polluter responsible without proof.
The last, but most critical agenda post 30 years of Bhopal, is to do everything that increases the participation of local people, worst impacted by environmental degradation and toxification, in governance. This can be done through more transparent public hearings, more public data dissemination and ways in which people are heard, not just listened to.
The bottom-line is that India’s environmental management system is a half done job. It requires to be finished so that we can meet the challenges of growth in a way that is both sustainable and inclusive. Only then will we really learn the lessons of the world’s most horrific industrial disaster in Bhopal.
Liability cannot be forgotten
After 30 years, the government of India is still struggling to establish the liability of UCIL, its parent company UCC and its buyer, Dow Chemical. Shame.
Consider the difference. In 2009, when petroleum giant BP’s oil drilling led to a devastating spill in the Gulf of Mexico, US President Barack Obama did not need to ask, whose “ass he should kick”. His government held those responsible to pay for the damage and reversed the earlier decision to cap liability in such cases. In 1989, when Exxon spilled gallons of oil off the coast of Alaska, the compensation for economic loss and punitive damages was fixed at US $1 billion, as against the Bhopal “relief” of US $470 million. The dead seals of the Atlantic were valued higher than the thousands of humans who lost lives in Bhopal and continue to suffer even today.
In Bhopal, the US multinational company UCC argued sabotage. The Indian government could not (or would not) prove negligence or regulatory failure or even lack of responsible adherence to internal safety standards. The liability was never established, partly because of ignorance, combined with powerlessness. Today, when the government is faced with the cost of remediation of toxic waste—left behind by the company—it is still not able to establish the liability of the company. The GoM, led by former home minister P Chidambaram, recommended “that the government should request the courts to expeditiously decide the question of liability of Dow Chemical Company and/or any other successor to UCC/UCIL.” In other words, the government is not even prepared to look the facts in the face and decide that the company that polluted and left behind hazardous waste has to be held liable for cleaning it up.
The courts have also been vacillating on this issue. As lawyers Divan and Rosencranz explain, the Supreme Court replaced traditional doctrine of liability with the rule of “absolute” liability. In the Shriram gas leak case, decided by the Supreme Court in 1986, the then chief justice P N Bhagwati observed that the principles and norms for determining the liability of large enterprises engaged in the manufacture and sale of hazardous products were questions of greatest importance. So, in its judgement the Supreme Court bench established that the “enterprise owes an absolute and non-delegable duty to the community to ensure that no harm results to anyone on account of hazardous or inherently dangerous nature of the activity which it has undertaken”. The justices go on to say, “we would hold that enterprise strictly and absolutely liable to compensate all those who are affected by the accident and such liability is not subject to any of the exceptions which operate vis-à-vis the tortious principle of strict liability under the rule in Rylandsv Fletcher.” Under this rule, strict liability is subject to a number of exceptions, like sabotage or the plaintiff’s own fault, which reduce its scope. This principle was applied by the Madhya Pradesh high court to support its award of interim compensation to Bhopal gas leak victims. The court ruled that the liability of the enterprise is “unquestionable”.
But this principle of “absolute liability” was questioned and then subsequently whittled down by the Supreme Court, ironically when it was asked to review the Bhopal settlement. Justice Ranganath Misra and Justice M N Venkatachaliah rejected the “absolute” liability, saying UCC was entitled to its day in court when its defences, if factual, would be heard and tested. “Indeed”, said the justices, “we should not proceed on the premise that the liability of UCC has been firmly established. UCC has seriously contested the basis of its alleged liability.” By recognising UCC’s right to raise and urge defences, the court, say Divan and Rosencranz, stepped out from the “without exception” absolute liability principle, which it had earlier agreed to.
Corporate liability is a must
Bhopal is about our collective shame. It is also about how systems of corporate liability remain grossly inadequate in a world where technology is high-risk and unknown.
The Civil Liability for Nuclear Damages Act 2010 is about who will foot the bill for accidents from such hazardous technologies. Even today, this provision to hold the operator liable for nuclear damage is a bugbear in Indo-US talks. Why?
Why should we not demand that the operator must pay the cost of safety, even if it increases insurance premiums and so, raises the cost of energy that is supplied? If it makes nuclear energy unviable then it only reflects the cost of generation—in real and safe terms. In other words, why should we not demand that if we must continue to use high-risk technologies then we must take on expensive safeguards, even if it makes technology uncompetitive. In the post-Bhopal age, all technologies must pay the real cost of their present and future dangers. Only then will we, as a society, try and understand the risks better. Only then will we, as a society, make better technology choices.
Many countries have adopted the principle of absolute liability when it comes to the introduction of genetically modified organisms. The Cartagena Protocol on Biosafety (under the convention on biological diversity) is the world’s first such attempt to hold operators responsible for damage—both from imminent and real threats—from the use of new technology.
More importantly, the issue of corporate liability is crucial, for only then will powerful companies worry about the implications of their actions on tomorrow’s generations. Today, they think of short-term and run-away profits—in chemicals, GM foods, nuclear energy or mining and drilling—in ways where no one (or science) has ever gone. We need tough corporate liability so that companies think twice before they expose us to dangers. Let them fret; we want to sleep in peace.
This is why Bhopal must never be forgotten, indeed must be fixed. Dow Chemical must be held liable for the toxic waste still present in the abandoned factory. It must pay for the plant site’s remediation. It must do this quickly, before toxins spread more poison, travelling through groundwater, into people’s bodies. This is also why Bhopal is not just about Bhopal, but about our collective action to bring justice to the people and do right to the environment across the world.
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