Dow Chemical’s Bhopal Position- Briefing

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The Dow Chemical Company’s Position Regarding the Bhopal Disaster

The Dow Chemical Company (Dow) defends itself against any liability relating to the Bhopal Disaster using incorrect and/ or misleading statements. Some of these claims are examined here and documentary evidence can be provided, on request, for all of the counter statements made by The Bhopal Medical Appeal.

Dow falsely claims that:

  • Dow: All Bhopal related litigation was settled by court-supervised settlement in 1989.

FACT: This is entirely untrue. Dow is a named respondent in both criminal and civil cases in India relating to Bhopal. The Union Carbide Corporation (UCC), a wholly-owned subsidiary of Dow, has never answered the criminal charges, of culpable homicide, outstanding against it and Dow has been summonsed to explain UCC’s non-appearance in the court on 12th November, 2014.

  • Dow: UCC had no substantial involvement in design, operation, or management of the Bhopal plant.

FACT: Extensive documentation exists of UCC’s role in designing, building, operating and managing the Bhopal plant. Two Indian courts have found UCC prima facie liable for the gas disaster but have been unable to enforce their own judgments.

  • Dow: Any environmental remediation issue is the responsibility of Indian authorities.

FACT: The Indian authorities did not design, install or oversee management of waste disposal systems in Bhopal, but UCC did. The legal principle of ‘the Polluter Pays’, enshrined in both US and Indian law, dictates that UCC must pay for the clean up. To claim otherwise is an attempt to place the burden for private environmental abuse upon the Indian taxpayer.

  • Dow: The Bhopal Disaster is a historical event and Dow was not involved at the time of the disaster and the civil settlement.

FACT: Whilst factually correct, this is designed to mislead and to obfuscate, amongst other things, the issue of ‘successor liability’, enshrined in both US, and Indian law that sees Dow liable for the legacy of Union Carbide’s business.

  • Dow: Union Carbide remains a separate business or legal entity to Dow Chemical.

FACT: This claim is at the root of Dow’s refusal to accept responsibility for Bhopal but their own regulatory filings are entirely contradictory, stating: “Union Carbide Corporation’s business activities comprise components of Dow’s global operations rather than stand-alone operations… there are no separable reportable business segments for UCC”.

FACT: Stating that it is an entirely separate corporate entity to Union Carbide is not, of itself, a sufficient statement of law to divorce Dow from UCC’s legal liabilities. It is not possible to say, given that information, that “there is no justification for a claim being brought against Dow”.

 

Dow’s public position undermines India’s attempts to gain redress and relief for victims of the two Bhopal disasters: the 1984 Gas Disaster; and the ongoing water contamination disaster caused by toxic waste abandoned by the Union Carbide  factory while it was in production.

  • Dow neglects to acknowledge the official position of the Indian government, as expressed in a letter to the Lower District Court, Manhattan, dated June 8, 2004, viz: “It is the official position of the Government of India that the previous settlement of claims concerning the 1984 Bhopal Gas Disaster between Union Carbide and Union of India has no legal bearing on or relation whatsoever to the environmental contamination… Pursuant to the ‘polluter pays’ principle recognized by both the United States and India, Union Carbide should bear all  the financial burden and cost for the purpose of environmental clean-up and remediation.  The Union of India and the State Government of Madhya Pradesh shall not bear any financial burden for this purpose.”
  • Dow neglects to acknowledge the 2005 application by India’s Ministry of Chemicals and Fertilisers requiring a deposit of Rs1billion, towards environmental remediation from joint tortfeasors, including Dow, named in public interest litigation in the Madhya Pradesh State High Court. Dow refuses to pay the deposit.
  • Dow neglects to acknowledge the grounds of India’s ‘civil curative petition’ to the Supreme Court which challenges the 1989 settlement with UCC because its ‘gross inadequacy’ resulted in an ‘irremediable injustice’. Incorrect data was used for the numbers of deaths, and injuries, and to assess the severity of injury. Dow is a named respondent, before the Supreme Court, and India seeks an additional $1.24 billion.
  • Dow refuses to acknowledge that its 100% owned subsidiary Union Carbide is a ‘proclaimed absconder’ from criminal proceedings relating to the Bhopal Disaster and is evading charges of culpable homicide not amounting to murder. A summons has now been issued requiring Dow attend the Bhopal Chief Judicial Magistrates Court, on 12th November 2014, to explain why UCC has repeatedly ignored court summons in the ongoing criminal case.

 

Other key legal facts obscured by Dow attempting to evade responsibility for Bhopal:

  • UCC is at the very least a joint-tortfeasor, sharing responsibility for the contamination with Union Carbide India Ltd (UCIL) and, as UCC’s parent company, Dow is legally obliged to shoulder UCC’s share of the liability.
  • UCC bears a clear responsibility for the contamination that occurred once key systems failed- as predicted by UCC operatives. UCC engineers in the US, designing waste disposal systems for the Bhopal site in 1972, expressed worries that the facilities were unsuited for the site and would lead to contamination of groundwater and thus of community water supplies. These worries were overridden.
  • By 1990 UCC (and UCIL) knew that groundwater and soil at the Bhopal site, and in the surrounding area, were contaminated by toxic substances emanating from the Union Carbide facility. They kept this knowledge to themselves and took no action to warn, or protect, local people.
  • In US courts UCC and Dow argue that only an Indian court can order a clean-up in Bhopal. But in Indian courts they claim that India has no jurisdiction over them.
  • Dow spokespersons regularly claim that Dow and UCC are separate companies, yet Dow owns 100% of UCC’s shares, elects every director to UCC’s board and is UCC’s only ‘customer’, the current UCC CEO, is a senior Dow management official.
  • Dow claims that it has not settled any UCC liabilities. But, Dow has accepted liability for asbestos claims against UCC in the United States pre-dating the merger. When Dow settled a suit on behalf of UCC on Jan 9, 2002, it wiped $7.16 billion from Dow’s share price.
  • UCC and subsequently Dow have consistently sought to hide behind the ‘corporate veil’ in order to evade justice and to enable Dow, in the form of DCIPL (Dow Chemical India Private Limited) and other affiliates, to continue trading in India. UCC is banned from trading in India due to its non-appearance in the criminal proceedings but Dow has knowingly flouted the ban. An Indian government run business was forced to withdraw from a contract with Dow after a statement was retracted claiming that Dow owned a particular technology. This activity amounts to a fraud against the courts of India and provides sufficient grounds to pierce the corporate veil if and when the two companies can be brought to court.
  • Dow has sought to use its economic muscle and high level U.S. government influence to pressure the Government of India into taking action that would release it from its Bhopal liabilities. In 2010, U.S. national security official Michael Froman, one of President Obama’s top economic advisors, threatened that the lawful pursuit of Dow, within India’s own courts, could “have a chilling effect upon our investment relationship.”

 

 

 

 

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We believe Dow & DuPont must finally accept responsibility for Bhopal. Until then, The Bhopal Medical Appeal funds two award-winning clinics in the city. Both offer free, first-class care to victims of the gas disaster or the ongoing water contamination. The survivors have nowhere else left to turn – please help if you can.