U.S. Court Decisions
Bhopal Litigation in the U.S.,
Initial Cases
Within days of the disaster, American personal injury lawyers who had gone to Bhopal brought civil litigation in the U.S. against UCC. The cases were first brought on behalf of individual claimants by the U.S. lawyers and later by the Government of India as statutory representative of all claimants under the Bhopal Gas Leak Disaster Act passed by the Indian Parliament in early 1985. The cases were consolidated in New York before U.S. District Judge John F. Keenan.
UCC moved to dismiss the litigation on the grounds of forum non conveniens; this is, it asked the court to dismiss the case because another court, or forum, in this case, India, was much better suited to hear the case. Judge Keenan granted the motion in May 1986 on the condition that UCC accept the civil jurisdiction of the Indian courts to hear the cases, which UCC accepted. The dismissal was affirmed on appeal and the U.S. Supreme Court declined to review it.
Class Action Lawsuits
Between 1999 and 2007, three class action lawsuits were filed in the U.S. District Court for the Southern District of New York against UCC and former UCC Chairman Warren M. Anderson:
- The Bano case was filed in November 1999 -- eight years after the settlement between UCC and the Government of India was upheld by the Supreme Court of India. The Bano plaintiffs attempted to avoid the preclusive effect of the settlement with the Government of India by alleging violations of international law and that UCC and Mr. Anderson had failed to appear in criminal proceedings in India, which they alleged was required by UCC’s consent to jurisdiction as a condition to dismissal of the U.S. litigation and the Supreme Court of India’s judgment upholding the settlement. The case was assigned to Judge John F. Keenan.
In January 2000 -- after the publication of a 1999 Greenpeace report concerning pollution at the former UCIL plant site -- the Bano plaintiffs filed an amended complaint, adding environmental pollution claims unrelated to the 1984 gas leak. The amended complaint alleged property damage in 16 colonies near the plant site as a result of groundwater pollution caused by the operation of the UCIL plant and also added Haseena Bi as a plaintiff, claiming personal injury and property damage from the alleged contamination.
For the next six years, the case and various appeals by the Bano plaintiffs were argued before both the District Court and U.S. Court of Appeals for the Second Circuit in New York, respectively. Finally, in August 2006, the Court of Appeals affirmed the last of Judge Keenan’s rulings, ending the litigation.
- Key rulings by Judge Keenan in the Bano case that were upheld by the Court of Appeals included:
- Plaintiffs lacked standing to sue with respect to the Bhopal gas disaster since the Government of India was the exclusive representative of the victims under the Bhopal Act.
- Plaintiffs’ claims were barred by the settlement with the Government of India.
- UCC did not violate his order to consent to the civil jurisdiction of the Indian courts, which was imposed as a condition to the dismissal of earlier litigation in the United States based upon the 1984 gas release on the grounds of forum non conveniens, by not appearing in the criminal case in India.
- UCC did not agree to criminal jurisdiction in India when the civil settlement was upheld by the Supreme Court of India and the criminal case was allowed to proceed.
- Dismissal of environmental pollution claims.
- Dismissal of plaintiff Bi's personal injury and property damages claims.
- Dismissal of claims seeking the remediation of the UCIL plant site.
- Dismissal of claims for property damage, injunctive relief and class-action certification.
Click here for the complete opinion of the U.S Court of Appeals for the Second Circuit in New York.
Click here for Union Carbide's statement on this ruling.
Remediation and Plant Site Pollution Litigation
- The Janki Bai Sahu case -- filed in November 2004 -- alleged personal injuries caused by pollution from the former UCIL plant site. The case, known as Sahu I, was brought by 13 individuals on behalf of themselves, family members and others similarly situated, and also was assigned to Judge Keenan.
For the next eight-plus years, the case and various appeals by the Sahu plaintiffs were argued before both the Court and U.S. District Court of Appeals for the Second District, respectively. Finally, in the June, 2013, the Court of Appeals affirmed the last of Judge Keenan’s rulings, ending the Sahu I litigation.
- Key rulings by Judge Keenan during the Sahu trial that were upheld by the Appeals Court included:
- Rejecting plaintiffs’ direct liability claims that UCC “participated in the creation of the pollution by approving the back-integration of the Bhopal Plant, designing the Bhopal Plant’s waste disposal systems, transferring technology to UCIL, by its knowledge of water pollution risks, and by its ‘intimate participation’ in environmental remediation efforts.”
- Rejecting plaintiffs' argument that the alleged environmental contamination would not have occurred if UCC had not approved back-integration of the plant, based on the undisputed fact that UCIL -- acting under pressure from the Government of India -- first proposed back-integration and that UCC’s approval did not, “as a matter of law, rise to the level of participation in the creation of pollution.”
- Rejecting plaintiffs’ contention that UCC “designed the faulty waste disposal systems installed at the Bhopal plant,” holding that “the documents [plaintiffs] cited simply do not establish that UCC was responsible for such design.” Judge Keenan found that “UCIL may have consulted UCC about its plans early on, but UCIL was the ultimate decision maker, so primary responsibility for the design and construction of the waste disposal system at the Bhopal Plant rested with UCIL.” A memorandum outlining the respective roles of UCC and UCIL “states in no uncertain terms that ‘UCIL will have the primary responsibilities for designing and providing the… facilities for… disposal of wastes.’”
- Rejecting plaintiffs’ argument that UCC was liable because it provided manufacturing technology to UCIL. Judge Keenan ruled that the generation of waste does not give rise to liability; rather, disposal of the waste is the issue.
- Finding that plaintiffs offered no evidence than any technology provided by UCC “itself was polluting” or “caused pollution, in and of itself.” Judge Keenan concluded “that the evidence demonstrates that the allegedly unproven and improper technology used at the Bhopal Plant was selected and/or developed by UCIL, not UCC.”
- Ruling that “[t]he fact that UCC recognized potential waste disposal issues does not give rise to the extensive liability Plaintiffs suggest.” Even if UCC had a duty to act, as plaintiffs’ contended, Judge Keenan found that “UCC did speak up, numerous times,” making UCIL fully aware of the waste disposal issues.
- Agreeing with UCC “that UCIL/EIIL is and always has been an adequately capitalized corporation, negating any inference that UCIL was a dummy or shell corporation used to carry out business.” Indeed, he held that “it is uncontested that EIIL is an independent going concern of adequate capitalization and assets,” negating any inference of abuse of the corporate form.
- Finding that the documents plaintiffs relied on to support their contention that UCC controlled UCIL actually showed that UCIL had “discretion which is completely inconsistent with plaintiffs’ theory of absolute control.” Judge Keenan concluded that “there is a marked lack of evidence of domination.”
- Asserting there was no individual liability for Mr. Anderson.
- Rejecting plaintiffs’ claims for medical monitoring and remediation on the grounds that they were impracticable – the same grounds on which they were rejected in the Bano case.
- In its last ruling in 2013, the Court of Appeals held:
- Concerning “Direct Liability” claims: "... no reasonable juror could find that UCC participated in the creation of the contaminated drinking water … Neither UCC’s approval of the plan to “back-integrate” the plant, nor its transfer of technology for pesticide manufacture, nor its designs for a waste disposal system, nor its limited involvement in remediation amount to participation in the failure of the evaporation ponds to contain the hazardous waste."
- “Sahu’s negligence claim fails for the same reason as does her nuisance theory – namely that any actions taken by UCC did not legally cause the pollution complained of.”
- Regarding plaintiffs’ “Indirect Liability” theories, “We find no error in the District Court’s legal conclusions and, based upon an independent review of the record, conclude that no reasonable juror could find for Sahu on any of these theories.”
The Court of Appeals concluded: “Sahu and many others living near the Bhopal 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.”
Click here for the complete opinion of the U.S. Court of Appeals for the Second Circuit in New York.
Jagarnath Sahu et al v. UCC and Warren Anderson (aka Sahu II case)
- After the Court of Appeals affirmed the dismissal of the Bano action, a second Sahu class action alleging property damage claims was filed in March 2007. The second Sahu action had been stayed pending the final appeal in the first Sahu action. Following its resolution, in July 2014 Judge John Keenan dismissed the Sahu II case and stated that the company could not be sued for ongoing contamination from the [Bhopal] chemical plant.
In May 2016, the U.S Court of Appeals for the Second Circuit in New York affirmed the lower court ruling, which said that UCC was not liable for any pollution arising out of the disposition of wastes at the former UCIL plant site in Bhopal. This was the last case in the U.S. courts seeking damages related to the Bhopal plant, all of which have been dismissed. Click here for the complete opinion of the U.S Court of Appeals for the Second Circuit in New York.
In June 2016, plaintiffs filed petitions for a rehearing of the appeal and certification of certain questions of state law to the New York Court of Appeals. UCC stated that the petitions are without merit and should be denied.
In July 2016, the U.S Court of Appeals for the Second Circuit in New York rejected the plaintiffs' petition for certification of certain questions of state law and then, on Aug. 15, 2016, the same court rejected the petition of plaintiffs for a rehearing, letting stand the lower court decision that said UCC was not liable for any plant site pollution effects arising out of the Bhopal tragedy. This was the last case in the U.S. courts seeking damages related to the Bhopal plant, all of which have been dismissed.
U.S. Court of Appeals for the 2nd Circuit Rules in 1987 Decision That UCC Did Not Design, Construct or Operate Bhopal Plant
In a 1984 case, plaintiffs sought to prove that the Bhopal accident was caused by negligence on the part of UCC in originally contributing to the design of the plant and its provision for storage of excessive amounts of the gas at the plant. In 1987, the U.S. Court of Appeals for the Second Circuit in New York upheld a lower court's ruling that "UCC’s participation was limited and its involvement in plant operations terminated long before the accident.
"Under 1973 agreements negotiated at arm’s-length with UCIL, UCC did provide a summary 'process design package' for construction of the plant and the services of some of its technicians to monitor the progress of UCIL in detailing the design and erecting the plant. However, the UOI [Union of India] controlled the terms of the agreements and precluded UCC from exercising any authority to 'detail design, erect and commission the plant,' which was done independently over the period from 1972 to 1980 by UCIL process design engineers who supervised, among many others, some 55 to 60 Indian engineers employed by the Bombay engineering firm of Humphreys and Glasgow.
"The preliminary process design information furnished by UCC could not have been used to construct the plant. Construction required the detailed process design and engineering data prepared by hundreds of Indian engineers, process designers and sub-contractors. During the 10 years spent constructing the plant, its design and configuration underwent many changes." Click here for the complete 1987 opinion of the U.S. Court of Appeals for the Second Circuit in New York.
Bhopal Litigation in India
Indian Court Rulings:
- Decision on the 1989 Settlement.
- 1991 Decision Upholding the 1989 Settlement:
- 2007 Decision Upholding the 1989 Settlement.
- 2023 Supreme Court decision completely dismissing the Curative Petition.
The litigation in India pertaining to the Bhopal tragedy can be broken into four distinct categories:
- Civil litigation
- Criminal litigation
- Curative Petition litigation
- Other Civil Proceedings in India: Public Interest Litigation
Civil Litigation
In September 1986, the Government of India instituted a civil suit against UCC in the Court of the District Judge, Bhopal, India, on behalf of all victims of the disaster. In keeping with its consent to jurisdiction given as a condition to dismissal of the U.S. litigation, UCC appeared and defended itself.
During the next three years, extensive proceedings took place in the suit concerning a variety of issues, including the issue of interim relief to the victims. When the proceedings eventually reached the Indian Supreme Court in 1988, the Court urged UCC, UCIL and the Government of India -- in lieu of interim relief -- to reach a final global settlement. In February 1989, after 24 days of hearings, the Supreme Court recommended a $470 million global settlement that was accepted by UCC, UCIL and the Government of India. Ten days after the decision, UCC paid $425 million and UCIL paid $45 million to the Government of India. The settlement resolved the civil litigation and quashed the criminal proceedings. The Supreme Court subsequently issued a decision explaining, among other things, how it arrived at the sum of $470 million for an overall settlement and why it considered the settlement to be “just, equitable and reasonable.”
In November 1989, Rajiv Gandhi’s government, which entered into the global settlement with UCC, was defeated in national elections. The opposition parties formed a coalition government, which reopened the question of compensation for the gas victims; concluded that the settlement was wholly inadequate; and instructed the Law Minister to back review petitions brought by activists in the Supreme Court challenging the settlement.
Three different Constitution Benches of the Supreme Court (i.e., a panel of five senior justices appointed by the Chief Justice) conducted hearings that went on for 64 days over a period of two years. In a 117-page decision, dated December 1989, the Supreme Court upheld the constitutionality of the Bhopal Act and the authority of the Government of India to settle on behalf of the victims.
For the complete court decision, please click here.
In October 1991, in a 114-page judgment, the Supreme Court further held that:
- The civil settlement was “just, equitable and reasonable”;
- The Government of India was required to cover any shortfall in the settlement amount;
- The Government of India was required to buy medical insurance for 100,000 asymptomatic people;
- The criminal case could proceed, and
- UCC was requested to fund a hospital in Bhopal for treatment of the victims.
Click here for part 1 of the court's decision.
Click here for part 2 of the court's decision.
Post-1991 Proceedings Regarding the Settlement
Virtually all claims were reviewed and adjudicated by 2002. A total of Rs. 1511.51 crores was paid from the settlement fund, according to a Government of India Scheme (program), which established the categories of claims and amounts of compensation, and which was administered by the Bhopal Gas Victims Welfare Commissioner. UCC played no role in the distribution of settlement funds.
The following year, various activist groups petitioned the Supreme Court, seeking disposal of the remaining balance of the settlement funds, which was approximately equal to the amount already paid. In July 2004, the Supreme Court directed the Welfare Commissioner to disburse the balance of Rs. 1503.01 crores to the claimants who had already received compensation, thus doubling the amount of compensation per claimant. Subsequently, the Welfare Commissioner reported that all claims had been adjudicated and that the claimants had been paid all amounts due to them under the Scheme and the directions of the Supreme Court. Please click here for the full report and, more specifically, see page numbered 37, paragraph 22 for the claims statement.
In 2006, activist groups sought to require the Government of India to increase the settlement fund by five times, alleging that the Supreme Court substantially underestimated the number of victims of the disaster when it approved the settlement. The Government of India said the allegations were unfounded and frivolous, and asked the Court to impose sanctions on the activist groups. In 2007, the Supreme Court denied the requested relief on the grounds urged by the Government of India.
In 2009, the Welfare Commissioner rejected another challenge to the settlement by activists and the Madhya Pradesh High Court affirmed the decision.
In 2010, activists filed a special petition in the Supreme Court, which the Welfare Commissioner also opposed while defending the settlement. The Supreme Court has not yet set a hearing date on this petition.
Criminal Litigation
The Indian Central Bureau on Investigation (CBI) initiated criminal proceedings in December 1987, which accused UCC Chairman Warren M. Anderson, seven managers of UCIL and three corporate entities -- UCC, Union Carbide Eastern and UCIL -- with “culpable homicide not amounting to murder,” the most serious offense charged. These criminal charges were quashed as part of the 1989 settlement, which resolved all civil claims as well.
However, in its October 1991 judgment upholding the settlement of the civil claims, the Supreme Court of India also held that the criminal case could proceed. Mr. Anderson and UCC were ordered to appear before the Indian criminal court in 1992, but did not because the court lacked criminal jurisdiction over them and the criminal charges had been quashed as part of the global settlement. The Chief Judicial Magistrate, Bhopal (CJM), declared them absconders and directed that a warrant be issued against Mr. Anderson to initiate proceedings for extradition.
In 1996, the Supreme Court of India reduced the charges against the Indian defendants to the lesser offense of causing death by a “rash or negligent act.” However, in 2002, the CJM refused to reduce the charges against Mr. Anderson and ordered the CBI to immediately seek his extradition. In May 2003, the Government of India formally requested the U.S. extradite Mr. Anderson to India, but in June 2004, the U.S. denied the request on substantive grounds; essentially, that the Government of India had not made a prima facie case for extradition.
In 2010, all the appropriate people from UCIL -- officers and those who actually ran the plant on a daily basis -- were convicted of negligence. The defendants appealed their convictions. The CJM denied attempts by the CBI to reinstate the original charges and the CBI has appealed. Decisions are pending on both appeals.
In response to the public outcry after the 2010 convictions, the CBI also renewed its request for Mr. Anderson's extradition. This request was still pending at the time of Mr. Anderson's death in September 2014.
Of note is the opinion of the Attorney General of India regarding the extradition of Mr. Warren Anderson dated Aug.6, 2001. For further details on the opinion of the Attorney General of India: Extradition of Mr. Warren Anderson, click here.
2010 Bhopal Court Decision; UCIL Executives Convicted of Negligence
By requirement of the Government of India, the Bhopal plant was detail designed, owned, operated and managed by UCIL and its employees. All the appropriate people from UCIL -- officers and those who actually ran the plant on a daily basis -- have appeared to face charges and were convicted of negligence. UCC and its officials were not part of this case since the charges were divided long ago into a separate case. Furthermore, UCC and its officials are not subject to the jurisdiction of the Indian court since they did not have any involvement in the operation of the plant, which was owned and operated by UCIL.
*Please note: In 1994, UCC sold its entire stake in UCIL to Mcleod Russel India Limited, which renamed the company, Eveready Industries India Limited (EIIL). In 1998, the Madhya Pradesh State Government, which owns and had been leasing the Bhopal plant site property to EIIL, cancelled the lease, took over the facility and assumed all accountability for the site, including the completion of any additional remediation.
Curative Petition
Government of India Files Curative Petition*
In 2010, after the verdict in the criminal case, a Group of Ministers was formed to consider additional compensation to victims of the disaster and other measures. Subsequently, in December 2010, the Government of India filed a Curative Petition in the Supreme Court seeking:
- To require UCC to enhance the settlement amount -- notwithstanding the Government of India’s vehement opposition to such relief when previously sought by activists;
- Reimbursement of relief and rehabilitation expenses incurred by the state and central governments; and
- A sum for remediating the plant site.
The total request was in excess of $1 billion. The Curative Petition also named TDCC as a respondent. Subsequently, the Madhya Pradesh State Government sought to intervene, as did certain interest groups who also filed an application alleging additional purported grounds for enhancing the settlement and stating that the additional payment should be $8.1 billion.
On March 14, 2023, the Supreme Court of India completely dismissed the Curative Petition. Click here for the complete 2023 decision by the Supreme Court of India completely dismissing the Curative Petition.
* A Curative Petition is a procedural device in India’s legal system designed for use in rare and narrowly defined situations to correct judgments entered as a result of procedural judicial error.
Background
UCC responded to these submissions in November 2011, demonstrating that they were legally and factually without merit; asserting that the Indian courts lacked jurisdiction over UCC; and stating that the Curative Petition is legally improper because:
- The Supreme Court fully considered and rejected objections from non-government organizations (NGOs) on two occasions following its initial validation of the settlement in 1989. First, it considered and overruled such objections in its final judgment in October 1991. Second, in 2007, after the settlement funds were fully paid out, the Court rejected challenges to the adequacy of the settlement on the same grounds the activists now reassert.
- The Government of India -- not UCC -- established the criteria for the acceptance and categorization of claims. The Government of India’s claims process was now complete and its determinations were final. In attempting to challenge the Welfare Commissioner’s determinations, certain interest groups greatly exaggerated the number of deaths and serious injuries caused by the disaster by relying on a report from the Indian Council of Medical Research published more than 15 years prior -- a report that simply did not support their claims.
At most, if the Government of India had been successful with its Curative Petition, it would merely have been able to undo the judgment it claims was wrong. Undoing the judgment would have meant that Government of India would have had to pay back the settlement amounts to UCC and UCIL (with interest), the settlement would have been unwound, and the Government of India would have had to proceed with the lawsuit it filed for compensation for victims. It would have had to prove wrongdoing on the part of UCC and UCIL, and would have had to submit proof of individual damages for all claimants. Of course, to require UCC to defend itself against such a case more than 39 years after the events at issue occurred would have violated its due process rights.
From Jan. 10-12, 2023, the Supreme Court of India held three days of hearings on the Curative Petition. On the final day, the Court dismissed a Transfer Petition submitted by the Government of India and, subsequently, completely dismissed the Curative Petition on March 14, 2023.
Supreme Court of India Upholds Settlement
Challenges to the settlement were mounted in 1990 and again in 2006, but each time the Supreme Court of India upheld the settlement. In a May 15, 1989 order, the Supreme Court of India agreed to hold the prior settlement orders in abeyance to allow challenges to the settlement’s validity and adequacy. Challenges were heard by Constitution Benches over a two-year period in 1990 and 1991. In a 69-page decision, the Supreme Court upheld the adequacy and reasonableness of the settlement. In its 1991 decision, the Supreme Court of India also:
- Required the Government of India to purchase, out of the settlement fund, a group medical insurance policy to cover 100,000 persons who may later develop symptoms; and
- Required the Government of India to make up any shortfall, however unlikely, in the settlement fund.
The government devised a claims adjudication system and began paying claims in about 1995. By 2002, nearly all claimants had been paid. Because of interest accruals and exchange rates, the original settlement had grown considerably, and about $330 million (Rs. 1360 crores) remained unspent. In 2004, the Supreme Court ordered the Government of India to disburse those remaining funds pro rata among the same individuals already compensated.
In 2006, another challenge was mounted to the settlement’s adequacy. Non-government organizations sought to have the Government of India increase the settlement amount by five times. The government defended the adequacy of the settlement, stating in an affidavit dated October 26, 2006 Click here to view the 2006 affidavit of the Union of India in the Supreme Court. , that “the validity of the settlement by no stretch of interpretation can be questioned at this stage as each and every claimant has got compensation as per law and his entitlement,” that “by no logic and reason is it open to say even for a moment that the justness or determination [of compensation] is impaired,” and that “[t]he application filed by the applicants is frivolous and may be dismissed with heavy costs.” Additionally, in November 2010, the affidavit of the Office of Welfare Commissioner – the government office charged with administering the settlement – reaffirmed, using the same language the Government used in 2006, that all those legitimately affected had been paid, including people who were merely present in the area and not injured. In a 2007 order, the Supreme Court once again determined that the settlement was adequate.
Click below to review the complete 1991 and 2007 Indian Supreme Court decisions upholding of the 1989 settlement.
- 1991 Part 1
- 1991 Part 2
- 2007
- 2023 Supreme Court of India Dismissal of Curative Petition
Other Civil Proceedings in India: Public Interest Litigation
Alok Pratap Singh vs. UOI: Madhya Pradesh High Court
An activist filed this public interest litigation in 2004 against the Government of India, Madhya Pradesh State Government, the Madhya Pradesh Pollution Control Board and TDCC, with non-governmental organizations (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 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.
UOI vs. Alok Pratap Singh: Special Leave Petition in the Supreme Court
Neither UCC nor TDCC is a party to this Special Leave Petition.
- 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 Government of India form a Committee of representatives from the states 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 Government of India for failing to comply with the Supreme Court’s direction and, in December 2011, also directed the Government of India to conduct a trial incineration. When the Government of India 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 Government of India 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 Government of India 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 Government of India 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 the Madhya Pradesh State Government, 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 Madhya Pradesh State Government 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 Government of India and Madhya Pradesh State Government 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 Madhya Pradesh State Government 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 Government of India 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 Madhya Pradesh State Government 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 Government of India officials, experts and activists held in New Delhi, India, on April 25-26, 2013.
- A trial incineration of some waste from the Bhopal plant site was conducted in August 2015.
Research Foundation for Science vs. UOI: Supreme Court
Neither UCC nor TDCC is a party to this Public Interest Litigation, 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 Madhya Pradesh State Government 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 Madhya Pradesh State Government 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 Madhya Pradesh State Government. This sampling was done to enable the CPCB to develop plans to decontaminate the groundwater and soil. Interim reports were submitted to the Court.