Other Civil Proceedings in India: Public Interest Litigation
1. Alok Pratap Singh vs. UOI: Madhya Pradesh High Court
An activist filed this public interest litigation (PIL) in 2004 against the Government of India (GOI), Madhya Pradesh State Government (MPSG), the Madhya Pradesh Pollution Control Board (MPPCB) and The Dow Chemical Company (TDCC), with non-governmental organzations (NGOs) also being given notice and the opportunity to express their views. Mr. Singh seeks to hold TDCC responsible to:
- Assume the undischarged liabilities of Union Carbide Corporation (UCC) for all pollution impacts;
- Clean up the site at Bhopal; and
- Provide long-term medical care, research and monitoring related to plant site pollution.
UCC has declined to appear in the case citing lack of jurisdiction.
2. UOI vs. Alok Pratap Singh: Special Leave Petition (SLP) in the Supreme Court
Neither UCC nor TDCC is a party to this Special Leave Petition (SLP).
Many efforts were made to explore incineration of the wastes. In a SLP filed by the State of Gujarat challenging Madhya Pradesh High Court orders directing incineration of Bhopal wastes in Gujarat, the Supreme Court requested that the GOI form a Committee of representatives of Madhya Pradesh and Gujarat to find a solution. The Committee recommended that the wastes be incinerated, after a trial run, at an incinerator being constructed at the Treatment, Storage and Disposal Facility (TSDF) in Pithampur. The Supreme Court directed that this recommendation be implemented in an order dated in January 2010.
On several occasions, thereafter, the Madhya Pradesh High Court has criticized the GOI for failing to comply with the Supreme Court’s direction and, in December 2011, also directed the GOI to conduct a trial incineration. When the GOI failed to comply, the High Court in March 2012 directed the Secretary of the Ministry of Environment and Forests to appear personally to show cause why he could not comply with the order.
The GOI immediately filed a SLP in the Supreme Court against the High Court’s order and the Court stayed the operation of the order while it considered the matter. There have been no further material proceedings in the High Court since the filing of the SLP.
The GOI also filed a petition in the Supreme Court to transfer the PIL to the Supreme Court and have it decided together with the Curative Petition, which included environmental claims wholly unrelated to the gas disaster. Both TDCC and the activist groups opposed the Transfer Petition, which the Supreme Court has not decided.
The GOI stated in February 2012 that a trial incineration of 10 metric tons of UCIL waste would be undertaken at the Pithampur TSDF within three months and a report would be submitted to the High Court. The Supreme Court directed MP, the MPPCB and the Central Pollution Control Board (CPCB) to implement the trial and report to the High Court by July 4, 2012, after which “the High Court may issue appropriate direction(s) in the matter of disposal of the waste.”
The MPSG filed an application to stay the Supreme Court’s order, pending examination of a proposal from a quasi-governmental German agency (GIZ) to incinerate 350 metric tons of Bhopal plant waste in Germany. Thereafter, the GOI and MPSG repeatedly requested additional time to finalize an arrangement with GIZ.
Activists filed submissions on the alleged liability of EIIL, UCC and TDCC for contamination of the UCIL plant site. UCC position: the arguments are similar to those asserted in the U.S. Sahu case and in the activists’ Curative Petition application proceeding in the Supreme Court.
GIZ withdrew its proposal and, since then, efforts have focused on preparations for incineration of the 350 metric tons of waste at the Pithampur incinerator.
Following the completion of the incineration facility, incineration of normal industrial hazardous waste and the successful trial incineration of 10 metric tons of waste “similar” to the UCIL waste in early 2013, the CPCB informed the Supreme Court that a trial incineration of UCIL waste now should be conducted.
The MPSG agreed to a trial incineration of 10 metric tons of UCIL waste, provided that it was conducted after December 15, 2013 -- once state elections were completed. At a hearing, the GOI opposed deferral of the trial, but the Court adjourned the matter pending a report from NGOs.
NGOs informed the Court the planned construction of residential buildings on the site near the solar evaporation ponds (SEPs) "could seriously aggravate the situation of contamination and critically impede remediation efforts.” In response, the MPSG stated it was not planning any construction, and two owners of land in the SEP area were ordered to not carry out any other activities on the property. (Of special note is the fact that Google maps indicate that a multiple-lane elevated highway has been constructed through the area of the former SEPs.)
In August 2013, activists filed the five-year remediation plan prepared by the Indian Center for Science and Environment (CSE) and based on a conference of GOI officials, experts and activists held in New Delhi, India, on April 25-26, 2013.
3. Research Foundation for Science vs. UOI: Supreme Court
Neither UCC nor The Dow Chemical Company is a party to this PIL, which commenced in 1996 and includes a claim that industrial waste sites throughout India violate the constitutional right to life.
The Supreme Court noted in 1997 that waste-generating industrial operations should not have been authorized by public officials “without ensuring the availability of the required safe disposal sites,” but deferred fixing responsibility for this failure.
In a series of orders, the Supreme Court:
- Directed the State governments and their Pollution Control Boards and the CPCB to identify the extent of the wastes, the availability of disposal sites, steps to minimize generation of wastes and proper handling and disposal of wastes.
- Because its orders were largely ignored, the Supreme Court appointed a Monitoring Committee to canvas waste sites throughout India and to recommend remediation measures to the Court. The Committee's April 2004 quarterly monitoring report targeted the Bhopal plant site and included recommendations that the site be cleaned up prior to the 2005 monsoon; that MPSG be required to close all hand pumps in the communities surrounding the site; and to supply them with “fresh water in tankers or in pipes for drinking and also for agricultural purposes.”
- Directed the MPSG to supply fresh water; the clean-up of the plant site was not mentioned.
During 2012 and 2013, the CPCB analyzed soil and groundwater samples at and around the Bhopal plant and also sampled the water supplied by MPSG. This sampling was done to enable the CPCB to develop plans to decontaminate the groundwater and soil. Interim reports were submitted to the Court.