Bhopal: Flowers on the altar of Profit and Power

Bhopal Flowers at the altar of proit and power Frank Pearce and Steve Tombs “We are not lowers offered at the altar of proit and power. We are dancing lames committed to conquering darkness and to challenging those who threaten the planet and the magic and mystery of life”. So said Rashida Bee, a Bhopal survivor who lost six family members in the disaster. In December 1984, a massive gas leak killed thousands in and around a Union Carbide chemical plant in Bhopal, India; tens of thousands have died since, and many more have had their lives and livelihoods devastated. The US-based company and its CEO remain absconders from Indian justice. They have consistently denied, obfuscated and used the resources at the disposal of the powerful to evade any legal judgment. This book draws on a considerable literature to make a social scientiic judgment of their liability for the world’s worst industrial ‘disaster’. It attempts to convey some of the horrendous events and consequences of the gas leak itself, before examining Union Carbide’s responses to and ‘explanations’ of the disaster, contrasting these with more persuasive explanations. The book then poses, and answers, a key question: was the disaster unforeseeable and therefore preventable? In conclusion, we explore corporate rationality and in particular relect on the view that everything has its price, that money can compensate for any loss or injury. It is this view which helps to explain the manoeuvrings that went into the determination of the deeply problematic legal “settlement” for the victims of Bhopal – a sordid compromise between unequal parties which offers no justice, but underlines why the struggle of Rashida Bee and others around the globe continues. No More Bhopals! Bhopal Flowers at the altar of proit and power Frank Pearce and Steve Tombs CrimeTalk Books North Somercotes CrimeTalk Books North Somercotes Lincolnshire. UK. www.crimetalk.org.uk Copyright © Frank Pearce and Steve Tombs 2012. ISBNs 978-0-9570241-6-8 [pdf] All rights reserved. Except for the quotation of short passages for the purposes of review, no part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without the prior permission of the Publisher or a licence from the ALCS [Authors Licensing and Collecting Society], 13 Haydon St., London EC3N 1DB. A catalogue record of this book is available from the British Library. PDF Prepared by York Publishing Services, Layerthope, York, YO31 7ZQ www.yps-publishing.co.uk Earlier versions of the chapters in this book were published in CrimeTalk, the criminology e-zine, as follows: http://www.crimetalk.org.uk/library/section-list/38/227-lowers-at-the-altar-ofproit-and-power-the-continuing-disaster-at-bhopal-.html http://www.crimetalk.org.uk/library/section-list/38/291-flowers-at-the-altarof-profit-and-power-the-continuing-disaster-at-bhopal-part-2-explaining-thedisaster.html http://www.crimetalk.org.uk/library/section-list/38/361-lowers-at-the-altar-ofproit-and-power-part-3-was-the-disaster-at-bhopal-qunforeseeableq.html http://www.crimetalk.org.uk/library/section-list/38-frontpage-articles/469bhopal-reassessment-part4.html http://www.crimetalk.org.uk/library/section-list/38-frontpage-articles/616bhopal-criminal-immoral-or-business-as-usual.html http://www.crimetalk.org.uk/library/section-list/38-frontpage-articles/228-thebhopal-disaster-pearce-and-tombs-bibliography.html Contents The authors vi Foreword vii Introduction 1 1 The disaster at Bhopal 4 2 Explaining the disaster 19 3 Was the disaster ‘unforeseeable’? 28 4 The ‘settlement’ 39 5 Criminal, immoral or the cost of ‘business as usual’? 52 Bibliography 57 The authors Frank Pearce is Professor of Sociology at Queen’s University, Canada. He was co-author with Steve Tombs of Toxic Capitalism (Ashgate,1998). His irst book, Crimes of the Powerful: Marxism, Crime and Deviance (Pluto 1976) also addressed corporate, organized and state crime. He has a long term engagement with sociological theory, particularly the work of Marx, Gramsci, Durkheim, and Foucault. Publications include The Radical Durkheim (Canadian Scholars Press 2001), “The College de sociologie” in Economy and Society, and Critical Realism and the Social Sciences co-edited with Jon Frauley. He tries and sometime succeeds in maintaining both “Optimism of the Will and Optimism of the Intellect”. Steve Tombs is Professor of Sociology at Liverpool John Moores University. He was co-author, with Frank Pearce, of Toxic Capitalism (Ashgate, 1998) and his recent publications include Regulatory Surrender: death, injury and the non-enforcement of law (Institute of Employment Rights, 2010), A Crisis of Enforcement: the decriminalisation of death and injury at work (Centre for Crime and Justice Studies, 2008) and Safety Crimes (Willan, 2007), all coauthored with Dave Whyte. He was Chair of the Chair of the Centre for Corporate Accountability, 1999-2009. vi Foreword This is the most incisive, persuasive and detailed account of the Bhopal disaster yet written. In clear, beautiful prose, using hundreds of documents and contrasting accounts, Pearce and Tombs meticulously document the causes, effects and aftermath of the world’s worst industrial “accident” (so far). Through its own corporate documents they trace the lines of responsibility from the parent company, Union Carbide (now Dow), to Bhopal, revealing the duplicity and venality of its efforts to distance itself by laying all blame on Indian management or the elusive “saboteur”. Their concluding argument shows how the world-view championed by neo-liberal economics – that market values must take primacy in all human relationships and that everything has its price – both legitimates Bhopal and fuels continuing cultural, environmental and social damage. This superb, important book should be read by activists, politicians and everyone working for a more just, equitable world. Laureen Snider, Professsor Emerita, Department of Sociology, Queen’s University, Kingston, Ontario, Canada. vii viii “The perpetrators of the worst corporate massacre in history are absconding from charges of culpable homicide for the last 19 years and the corporation that is sheltering this fugitive from justice for the last 10 years is now the main sponsor of London Olympics 2012. It has been 27 years and the victims of Bhopal are still awaiting justice, time the international community sat up and took notice.” Satinath Sarangi, Bhopal Medical Appeal, communication to Steve Tombs, 2 December 2011. personal “We are not lowers offered at the altar of proit and power. We are dancing lames committed to conquering darkness and to challenging those who threaten the planet and the magic and mystery of life.” The above statement is from Rashida Bee, a Bhopal survivor who lost 6 family members in the disaster, and can be viewed in the excellent video below: “The Bhopal Chemical Disaster: Twenty Years without Justice”, 2007, an excellent summary of the whole tragedy and scandal, produced by Sanford Lewis and reproduced here with his kind permission: http://www.youtube.com/watch?v=0csW97x8d24 ix Some informative videos There are several videos which dovetail well with this book that are available on YouTube for those of you who wish to hear the story, see some of the participants, view something of Bhopal the city, and hear some of the legal and technical assessments. Here are the links: “One night in Bhopal”, BBC: http://www.youtube.com/watch?v=uz73rcdSG80&feature=related “Bhopal gas tragedy, Parts 1-4, National Geographic: http://www.youtube.com/watch?v=Up5rbkS4CGI&feature=related http://www.youtube.com/watch?v=OXCXNIH2pZw&feature=related http://www.youtube.com/watch?v=Dkt6rUypnE4&feature=related http://www.youtube.com/watch?v=KaklNxU3MOE&feature=related “Bhopal 26 years later – search for justice continues, Annie Leonard: h ttp://www.youtube.com/watch?v=19Q4iBXgwpU&feature=related “Bhopal disaster – BBC – The Yes Men”, The Yes Men. http://www.youtube.com/watch?v=LiWlvBro9eI&feature=related “Bhopal gas tragedy: explore the truth”, Kadam Seva Samiti. x Some useful websites for documenting and resisting corporate crime and harm Bhopal http://www.bhopal.org/ The Bhopal Medical Appeal supports the Bhopal survivors and the medical work in Bhopal. It arises from and is part of the survivors’ struggle. Its inspiration and ideals come from the survivors http://bhopal.net/icjb/ The International Campaign for Justice in Bhopal is a coalition of organisations, non-proit groups and individuals led by ive Bhopal survivor organisations working in close alliance with others. http://studentsforbhopal.org/ Students for Bhopal is a a network of students, professionals, activists, and partners working in solidarity with the ICJB and the survivors of the Bhopal disaster in their struggle for justice http://bhopal.bard.edu/ The Bhopal Memory Project, resources for teaching, learning and action around the disaster Other www.corporatewatch.org/ Corporate Watch (UK) tracks similar forms of corporate activity to the US journal of the same name (below), but is independent of and unrelated to the US publication. www.corpwatch.org/trac/about/about.html Corporate Watch (US) tracks illegal and unethical corporate activity, and business-industry relations. Its parent organization is the Transnational Resource and Action Center (TRAC), based in San Francisco xi http://www.hazards.org/ Hazards Magazine uses a global network of union safety correspondents to provide resources for campaigns for safer and healthier workplaces www.business-humanrights.org/Home Business and Human Rights Resource Center, provides access (through links) to a wide range of materials on subjects relating to business and human rights. www.corporatepolicy.org/issues/crime.htm The Center for Corporate Policy, US-based non-proit, non-partisan public interest organization “working to curb corporate abuses and make corporations publicly accountable” http://www.pcaw.co.uk/index.htm Public Concern at Work (PCaW) is an independent authority on public interest whistle-blowing, seeking support and facilitating whistleblowing as a means of anticipating and avoiding the organisational production of harm. http://www.crocodyl.org/ Crocodyl aims to stimulate collaborative research among NGOs, journalists, activists, whistleblowers and academics from both the global South and North in order to develop publicly available proiles of the world’s most powerful corporations. www.stopcorporateabuse.org Corporate Accountability International (formerly Impact) are engaged in advocacy, grassroots organizing, research and education, seeking to put an end to irresponsible corporate behaviour. http://freedocumentaries.org/aboutus.php Streams full-length documentary ilms free of charge, with no registration needed. It represents itself as “a much-needed counterbalance to corporate media: an industry dominated by special interests”. There are numerous ilms there relevant to the concerns of this module. xii Introduction We are not lowers offered at the altar of proit and power. We are dancing lames committed to conquering darkness and to challenging those who threaten the planet and the magic and mystery of life. (Rashida Bee, a Bhopal Survivor who lost six family members in the disaster, in Lewis, 2007) We hope that this verdict today helps to bring some closure to the victims and their families. (Robert Blake, the US assistant secretary of state for South Asia, on the court case of June 2010, in America – Engaging the World, 2010) In June 2010, over 25 years after the massive gas leak which killed thousands at a chemical plant in Bhopal, Madhya Pradesh, an Indian court inally handed down sentences following successful criminal prosecutions related to the disaster. After the original charges of culpable homicide had been watered down, seven senior managers working at the Bhopal plant in 1984 were found guilty of death by neglect (an eighth so charged had died during the legal process), given two year prison sentences and ined the equivalent of approximately $2,100. Union Carbide India Ltd (UCIL), then a subsidiary of the American company Union Carbide Corporation (UCC) and since 1995 of Eveready Industries India Ltd (EIIL), was ined $11,000. All those found guilty were Indian nationals but Warren Anderson, American CEO of UCC at the time of the gas leak, UCC itself and Union Carbide Eastern (UCE), another subsidiary of UCC with oversight over UCIL, could not be considered for trial in their absence: the court labelled these three named defendants ‘absconders’. As the writer Indra Sinha put it, then: 1 “The people most responsible for the disaster in Bhopal were not in the courtroom …. Union Carbide Corporation (US), its former chairman Warren Anderson, and Union Carbide Eastern have been refusing since 1992 to obey the summons of the Bhopal court and answer charges of culpable homicide. The evidence against them remains unheard. Instead the prosecution focused on the small fry, the Indian managers, while the case that they were ultimately carrying out orders that originated in the US has not been tried.” (Sinha, 2010) From some viewpoints, the convictions may represent justice, albeit of a limited kind. It is certainly exceptional for any senior manager to receive a custodial sentence following occupational deaths or environmental damage. In a whole series of ways, however, the verdict merely represents another in a long series of instances of justice denied. Hazra Bee, of the International Campaign for Justice in Bhopal, responded to the sentences by stating “We feel outraged and betrayed. This is not justice. This is a travesty of justice … the paltry sentencing is a slap in the face of suffering Bhopal victims”. On the same website, Sathyu Sarangi, of the Bhopal Group for Information and Action, commented that “by handling those guilty of the world’s worst industrial disaster so leniently, our courts and Government are telling dangerous industries and corporate CEOs that they stand to lose nothing even if they put entire populations and the environment at risk”. In this short book, we draw on a considerable literature (see our Bibliography on p. 57) to consider the claims of Sarangi, Bee and 2 others in the context of the long struggle for justice by the victims and residents of Bhopal – a struggle that continues, but within which the recent convictions represent a landmark. In Chapter One we try to convey some sense of the horrendous experiences of those who were exposed to the toxic cloud. In Chapter Two we look at Union Carbide’s response to and explanation of the disaster, contrasting it with more persuasive explanations. In Chapter Three, we pose and provide an answer to the question: was the disaster unforeseeable? In Chapter Four we explore some of the manoeuvrings that went into the determination of the deeply problematic “settlement”. By way of a conclusion, Chapter Five explores the relationship between corporate rationality and corporate crime and ends with a relection on the effects of the view, intrinsic to neoclassical economics, that in the human world primacy should be given to market relations. There is an intimate relationship between this mode of thought and the view that everything has its price, or, in other words, that money can compensate for any loss or injury. Overall, we address and assess the complex claims and counter-claims around responsibility for the disaster, and seek to demonstrate that the settlement failed both to provide justice for the victims and to apply justice to the perpetrators. This Bhopal tragedy is not, sadly, a Shakespearean tale. It is, of course, all too real – despite the attempts by a toxic capitalism and its political allies to deny its nature and dimensions, their consistent lies and obfuscations regarding its causes, and their callous and persistent efforts to enforce closure upon people who will not be silenced. It is a disaster of unprecedented proportions, which continues every day, with effects far beyond the city walls of Bhopal. 3 Chapter 1 The disaster at Bhopal The city of Bhopal Bhopal is an ancient city originally founded in the 11th century by Rajah Bhoj, a member of the Hindu Parmara dynasty, which for centuries dominated central India. At the eastern extremity of his kingdom Bhoj created a large artiicial lake and on its banks, to monitor the border, he built the city of Bhojpal. Its fortunes were closely tied to that of the dynasty and as this declined so did the city. It was re-founded in the 18th century but now as the semi-sovereign city-state of Bhopal and was ruled by male (and, famously, female) Muslim Nahwabs, until 1949 when its sovereignty was formally ceded to the Democratic Republic of India. In 1956 Bhopal, ‘the city of the lakes’, became the capital of Madhya Pradesh, the newly created and largest state in India. Not surprisingly there was soon a burgeoning government sector, which became the city’s largest employer and producer of goods and services and, indeed, the major consumer of much of these same goods and services. With state support there were also rapid developments in the manufacture 4 of cotton, textile, jute and electrical products. Most of this development occurred in ‘New Market’ or ‘New Bhopal’, somewhat south of what now came to be called ‘Old Bhopal’. This was also the time of the ‘Green Revolution’, which dramatically improved the productivity of India’s agricultural sector. There was a marked increase in the production of food, which was seen as due to the use of new strains of cereal, new forms of irrigation, new fertilizers and pesticides, mono-cropping, and the extensive use of farm machinery. The larger farms facilitated, and their owners particularly beneitted inancially from, economies of scale, and from the opening up and greater geographical reach of impersonal markets. Consumers were encouraged to look to the market for the necessities of life, farmers to orient to it to provide land, employees, manufacturing goods, and customers, and workers to rely on it for their incomes. The play of market forces allowed the better-capitalized farmers to purchase farm machinery and to buy land from other farmers who wished to/needed to sell their small, ‘ineficient’ farms. The latter farmers were thereby released from the obligations imposed by traditional 5 communitarian Indian village life and could, if they so wished, seek work elsewhere. “[B] etween 1961 and 1971 the number of agricultural labourers in India increased by 70 percent [over 20 million], while the number of farmers decreased by 16 percent (15 million)” (Everest 1986: 110). This modernizing Indian society required a commodiication of social relations, already well developed in many urban areas where machinery, fertilizers and pesticides were imported and sometimes manufactured. If modernization brought with it the possibility of new ways of living in, and thinking about, the world, it also generally increased inequality (Freebairn 1995: 266), removed traditional forms of protection and security, and exposed populations to new dangers on a massive scale. The company: UCC, UCE and UCIL What follows is a brief history of the relationship between the American parent, UCC and the Indian subsidiary, UCIL. The story begins in the late nineteenth and early twentieth century, a period of technological change, economic growth, a proliferation of companies and also the consolidation of companies through acquisitions and mergers. Of particular interest to us are the relationships between a number of companies in the burgeoning American electrical industry; these companies included – Linde Air Products (1907) which produced liquid oxygen; Prest-O-Lite, (1906) manufacturer of calcium carbide; Electro-Metallurgical (1906) a mining company; EverReady (1905) manufacturer of batteries and lashlights; Union Carbide (1898) and National Carbon (1888) both of which made carbon rods for arc lights and electrodes for electric arc furnaces. In 1905, National Carbon began to export its manufactured goods to India and in 1913 created an Indian subsidiary also named National Carbon and 100% owned by the American parent. It is likely that the latter’s afiliation with and inally purchase of Ever Ready in 1913 (allowing for a dramatic expansion of their inventory) contributed to the decision to create the subsidiary. 6 Four years later, in 1917, all of these companies became a part of the conglomerate, Union Carbon and Carbide Corporation (UCCC). This consolidation left the relationship between the subsidiary and the parent company relatively unchanged. Over the next 80 or so years the parent company and the subsidiary mutated – through name changes, buyouts, amalgamations and restructurings – into different forms of organization and company names, but always sustaining a similar asymmetrical relationship between the American parent company and the Indian subsidiary which it owned and controlled. Another important continuity was that throughout this period, the Indian company’s core business was irst the sale of, and subsequently also the manufacture of, Eveready batteries and allied goods. Eveready products became extremely well known and well regarded by most Indian people and this had something of a halo effect on other products made by the same corporation. UCC also retained its interest in electrical goods but it was a much more diverse company with another major interest, chemicals. We will return to this below In 1957, reluctantly UCCC bowed to the provisions of India’s 1956 Company Act and accepted that its Indian subsidiary, now named National Carbon India Limited, a privately owned company, of which it still owned 100%, should go public by issuing 800,000 shares (equivalent to 40% of its equity) available for purchase only by Indian investors. Individual and institutional Indian investors purchased the shares, leaving UCCC with 60% of the company’s equity. In the same year UCCC reorganized and refounded itself as Union Carbide Corporation (UCC) and in 1957 its Indian subsidiary did the same, becoming Union Carbide India Limited (UCIL). UCC had become increasingly involved in the development of pesticides and at its Institute Chemical Facility, in West Virginia, it began to manufacture the carbamate pesticides Temic (Aldicarb) and Sevin (Carbaryl). Although these sold well in the US, UCC came to identify 7 India as a potentially strong market and in the early 1960s it exported to India 1,400 Metric Tons (MTs) of Sevin. Soon after, another 850 MTs of Sevin were exported but this time as a gift paid for by the Red Cross and the U.S. A.I.D. Food for Peace Program. In a full-page advertisement (see below), ‘Science Helps to Build a New India”, in National Geographic magazine, UCC announced, “Union Carbide, working with Indian engineers and technicians... recently made available its vast resources to help build a major chemicals and plastics plant near Bombay”. The plant was to be owned and operated by UCIL which while remaining the major manufacturer and distributor of batteries and allied products as the Carbide Chemicals Company (CHEMCO) was now a major distributor and producer of chemicals. This area of its activities was given a major boost with the actual opening of the Bombay plant in 1961. Moreover, it was there that in 1966 it pioneered India’s petrochemical industry by installing its irst Naphtha cracker (D’Silva 2006). In 1966, in order to refocus, integrate and regionally co-ordinate its vast array of global interests, UCC created three new large companies, Union Carbide Europe, Union Carbide Pan America and Union Carbide Eastern (UCE). Each of the three companies reported directly to UCC and was responsible for overseeing its interests and equity in the companies in its region. UCE was responsible for overseeing UCIL and the latter generally reported directly to UCE. In 1966, UCC had also created a global Agricultural Products Division and UCIL soon followed suit by creating its own such Division to which it assigned the Bhopal plant. (Prior to 1967, the superior corporate body to UCIL will be referred to as UCC, and from 1967 it will generally be referred to as UCC/UCE.) In 1966, UCIL applied for a licence to build in Bhopal a facility for formulating the pesticide Sevin – this was a ‘low tech’, relatively lowrisk process, involving the addition of chemically inert materials to the ‘moderately toxic’ carbaryl – and, when, a year later this was granted, it immediately began to build the facility on a 5-acre site near the 8 9 railway terminal in Old Bhopal. At that time the population of Bhopal was approximately 300,000. In 1970, UCIL applied for a new licence this time to manufacture carbaryl using an MIC-based process. After long, drawn-out negotiations, it was agreed that UCIL would go ahead with the Sevin plant by expanding its original facility from 5 acres to more than 80 acres. Construction of the various components of the pesticide manufacturing plant began in 1976, and in 1981 the plant began to produce MIC and Sevin. It is important to note that by 1984 the total population of Bhopal had grown to approximately 800,000, with 200,000 people living near the UCIL chemical facility and particularly to its South, near the railway terminal and the bus station. Few of the inhabitants of this area had very marketable skills. If they supported their families by paid employment, their work required relatively little formal training and they earned low wages. Many were underemployed or unemployed. Generally their housing was temporary and often built on squatted land. An advantage of this area was that it included the railway terminal and the bus station, allowing its inhabitants to go far aield in their search for work. Its greatest disadvantage would turn out to be its proximity to the UCIL facility. The poisonous cloud and its victims At one o’clock in the morning of December 3rd 1984, while there were a few night owls working or socializing in Old Bhopal, most of the inhabitants – boys and girls, mothers and fathers, grandmothers and grandfathers – had long been asleep. Unbeknown to any of them, the nearby chemical plant had begun to spew out a cocktail of gases, vapours and liquids, forming a large low-lying cloud, which spread out from the plant, particularly in south and southeasterly directions. Some of those living near the chemical plant may have heard the sound of its public warning siren. Others, quite early on, detected a faint odour of gas. But the sounding of the alarm was typically inconsequential and 10 11 there was nothing unusual about leaks of gas that temporarily irritated the eyes. There was no obvious reason why those who lived nearby should feel that they needed to evacuate the area; there had never been any rehearsals for evacuation because there was no evacuation plan. Local people had no way of knowing how to prepare for or respond to any gas leak. They had never been told about the toxicity of the chemicals used by UCIL. Suddenly the white cloud of highly concentrated gas began to blanket the area, enveloping those out in the streets and insidiously creeping under the doors and through the gaps in the walls of the improvised dwellings typical of the area. People began to ind it hard to breathe. Some were immediately overtaken by respiratory paralysis and died in their beds. Eyes watered and burned, everybody was coughing, some were vomiting, some collapsed – and many of these, too, would die. Some led out to the streets, parents scooping up their children while doing so. Those with the greatest resources monopolized the transportation, which would take them to safety. The vast majority, if they could run, began to run – hither and thither, in any direction that would leave behind the poisonous gas, at least so they hoped and prayed. Some ran not into safety but into even more of the gas (Mukherjee 2010). Some of the ‘lucky’ ones who successfully ran away from the gas cloud still did not escape tragedy: Ganga Bai, a twenty-eight year old mother, had managed to pick up her two-year-old daughter to run for several miles to safety – only to ind that the child she was carrying was dead in her arms (Shrivistava 1987: xvi-xvii). Others found on their return that those they had been forced to leave behind were dead or permanently disabled. 12 Many made their way to one of Bhopal’s four main hospitals. Although medical staff immediately began to treat patients, they had no information on the composition of the gas, the speciic harms it inlicted, nor the appropriate antidotes. They improvised, guessing which treatments were appropriate: for breathing problems trying a combination of oxygen, bronchodilators, diuretics and corticosteroids, and for eye problems little more than water. The scale of the task overwhelmed the duty doctors and the nursing staff. Many of the sick, some close to death, were piled on top of each other in the corridors, amongst the dead. Other acute symptoms included burning in the respiratory tract and eyes, blepharospasm, breathlessness, stomach pains and vomiting. The main causes of death were choking, relexogenic circulatory collapse and pulmonary oedema. After some four hours, the gas began to dissipate but the damage it was doing to the bodies and minds of the people of Bhopal was only just beginning. Eventually, the duty doctors at the hospital nearest the plant, the 850-bed Hamidia Hospital, managed to get hold of UCIL’s medical oficer. The latter set the tone for UCIL and UCC personnel in that, while some of the information he provided was accurate, it was so incomplete and intermingled with so much incorrect information that, in effect, it was misleading. While he identiied Methyl Isocyanate, MIC, as the leaking gas, he also claimed that it was not poisonous – rather, a form of teargas, at worst an irritant. He further claimed that there was no speciic antidote for MIC, but washing out the eyes and the mouth with water would be enough to remove any dangerous effects (LaPierre and Moro 2002: 327). In fact, MIC is extremely toxic. Washing the eyes might provide some immediate relief, but MIC tends to stay in the body. This mattered a great deal, because while it is in the body it continues to inlict damage and the longer it stays in the body the more permanent is the damage. He did not warn them that in addition to MIC there was likely to be present in the gaseous cocktail that had spewed from the plant such gases as ammonia, phosgene, monomethylamine, hydrogen cyanide, carbon monoxide, and nitrous oxide, each of which had known and speciic toxic effects. It is impossible to know if his inaccuracies 13 were part of a conscious strategy, or if he misled them, at least in part, as a consequence of his ignorance. But if he was, indeed, ignorant, he could have been ‘willfully’ or inadvertently so, but in either case ignorance is no justiication for making unfounded claims. Whatever the reasons, he provided the hospital staff with inaccurate information. MIC is a volatile, highly reactive and toxic chemical with a very low Threshold Limit Value (TLV). A TLV for a substance is the maximum level of its concentration in the atmosphere at which it is claimed it is still safe to breathe for up to eight hours; this value is measured in parts per million (ppm). The TLV for MIC was .02 ppm: and the TLV documentation was readily available at the Bhopal site. The TLV had been determined by the American Conference of Governmental Industrial Hygienists (ACGIH) using very limited scientiic data, including some data from a number of studies UCC had funded at the Carnegie Mellon Institute; but access to this by other interested parties, including the Government of India, was denied in the name of trade secrecy (UCC 1963a,b, 1966, 1970, 1971). Sharan and Gopalkrishnan (1997: 135-41) have calculated that those affected most immediately by the gas were exposed to a concentration 2500 times its TLV, while even those exposed to it considerably later faced levels of 50 times or more its TLV. A few days after the gas leak, UCC sent a technical team to investigate the causes of the accident, and an international team of ‘top medical experts’ to work with the local Bhopal medical community and to produce a medical report on the effects of the gas release. One pulmonary specialist, Thomas Petty, claimed that victims of the gas release were “recovering rapidly”. Another pulmonary specialist, Dr. Hans Weill, said that most “have an encouraging prognosis and.. would recover fully”. These predictions proved worthless. Nevertheless, there may have been valuable clinical information within these reports – but they were never made available to the Indian government, inhibiting the development of adequate long-term treatment. The effects of the gases on future generations was and remains unclear, even as health effects 14 manifest themselves with disturbing regularity among the children of gas-exposed parents.,Almost half the pregnant mothers exposed to the gas were to lose their foetuses. Since the disaster, the city has been plagued with an epidemic of cancers, menstrual disorders and births of children with severe health problems (Varma and Gust 1993). Estimates of how many were affected immediately and in the longer term by the gas cloud vary considerably. Initially the Indian Government stated that there had been 1,700 immediate deaths, a igure subsequently revised upwards to 3,329. In 2004, an Amnesty International report marking the twentieth anniversary of the disaster claimed a minimum of 7,000 immediate deaths, a subsequent 15,000, with 100,000 ‘survivors’ unable to work again (Amnesty International, 2004). The Sambhavna clinic, established in Bhopal to treat the gas victims, has estimated that, 15 “Half a million people were exposed to the gas and 25,000 have died to date as a result of their exposure. More than 120,000 people still suffer from ailments caused by the accident and the subsequent pollution at the plant site” (The Bhopal Medical Appeal, n.d.). It is no surprise, but nevertheless scandalous, that the lower igure of 3,329 dead is the one that UCCIL, UCC and Dow – the global chemical company which effectively took over UCC in 2001 – all accept. Even if the lowest of these estimates is accepted, it is clear that the disaster was one of almost unimaginable proportions and with longlasting and lingering negative effects. Various chemicals known to cause cancer, birth defects and brain damage continue to be found in local groundwater and wells (The Bhopal Medical Appeal, n.d.). These have never been subject to any sustained ‘clean up’ operation. Injustice upon injustice: London 2012 and the enduring legacies of Bhopal Although assuming the assets and liabilities of UCC in a hostile merger in 2001, Dow Chemical Corporation has consistently refused to accept responsibility for the clean up of the Bhopal area. The issue of Dow’s ownership of this toxic legacy has been a focus of campaigns since that year – with a 2012 Wikileaks release revealing the company as a client of the “global intelligence company” Stratfor, contracted to monitor those campaigning on the issues of Bhopal (Chatterjee, 2012). Moreover, at the end of 2011, Dow’s relationship to the Bhopal plant erupted into the headlines in the UK and beyond as that company’s pride-of-place sponsorship role in the London 2012 Olympic games was revealed and subjected to sharp criticism. In this context, it is worth noting what the Olympic movement claims its Games are about. The irst of the seven ‘Fundamental Principles of Olympism’ is, according to the Olympic Charter, that “Blending sport with culture and education, Olympism seeks to create a way of life based on the joy of effort, the educational value of good example, social 16 responsibility and respect for universal fundamental ethical principles”. The seventh and inal principle is “Belonging to the Olympic Movement requires compliance with the Olympic Charter” (International Olympic Committee, 2011) But Dow’s involvement evidences no ‘social responsibility’, no ‘joy’, no ‘good example’, no ‘respect for universal fundamental ethical principles’ – in short, no ‘compliance’ with the Charter. If these commitments are to be more than weasly words underpinning a festival of corporate sponsorship, then the position of Dow as “the oficial Chemistry Company of the Olympic Movement” (London 2012 Press Ofice, 2011), and its provision of a high-proile ‘wrap’ that will surround the Olympic Stadium during the Games, should never have been entertained. On announcing the venture, Lord Sebastian Coe, former Olympic goldmedallist and ex-Tory MP, then Chair of the London 2012 Organising Committee, stated: “The stadium will look spectacular at Games time and having the wrap is the icing on the cake. I’m delighted that Dow, as one of the newer worldwide partners of the Olympic Movement, will be providing it and importantly doing it in a sustainable way. It relects our vision and is a real statement of intent from Dow about their commitment to the Games.” (London 2012 Press Ofice, 2011). No such vision was relected. For Dow has consistently refused, and continues to refuse, to meet its obligations to the people of Bhopal. When challenged on this, Lord Coe sought to provide a smokescreen for Dow, thus: “I am the grandson of an Indian so I’m not completely unaware of this as an issue. But I am satisied that at no time did Dow operate, own or were involved with the plant at the time of the disaster or the time of the full and inal settlement.” (Coe, cited in Gibson, 2011). 17 This rather begs the question, “whose chemicals are causing the current poisoning” in Bhopal? (Sinha, 2012). Indeed, Coe was at best disingenuous to imply Dow has no responsibilities for the suffering of the people of Bhopal. When Dow bought Union Carbide in 2001, it surely inherited its liabilities as well as its assets – morally, at least. These liabilities are signiicant and ongoing. Nor has there been, as Coe claims, a “full and inal settlement”, which he surely knows, and as attested to through the ongoing struggles of a number of campaigning organisations. The fact that this issue is not settled is evidenced through the Indian legal process itself of course, as we noted at the outset of this chapter – with Warren Anderson, American CEO of UCC at the time of the gas leak, UCC itself and Union Carbide Eastern (UCE), another subsidiary of UCC with oversight over UCIL, remaining as ‘absconders’ from court. As Indra Sinha has said of the struggle against injustice after injustice: “(F)or the beneit of Dow and Coe, here is my own deepest understanding of what Bhopal is about, and the reason why I will never abandon the people of Bhopal. “A great catastrophe, followed by years of illness, poverty and injustice, can overwhelm and crush the human spirit, or can enable ordinary people to discover that they are extraordinary. Such people ind that they have the grit to survive, the deiance to face their persecutors, and the courage to ight back. Out of shared struggle, even in the midst of terrible sickness, comes strength, the joy of friendship, the realisation that they are not weak, powerless or contemptible, but possessed of great power – the power to bring about political change, to do real good in their community and in the world. “No one knows how this story will end, but it won’t be over until we enter and become part of it.” (Sinha, 2012) 18 Chapter 2 Explaining the disaster UCC, UCE, UCIL and the disaster UCC (Union Carbide Corporation) responded to the disaster by making a series of public, defensive, claims: that the disaster was totally unprecedented and unanticipated so it was not surprising that an “evacuation or safety plan had never been developed”; that they had not located the MIC plant at Bhopal “for reasons of economy or to avoid safety standards”; that they had the same safety standards in their American and overseas operations, “in India or Brazil or someplace else … same equipment, same design, same everything” (Everest 1986: 47-8). UCC claimed that its safety standards were identical to the standards at Institute, West Virginia; that the plant had an excellent safety record; and that the plant’s Standard Operating Procedures (SOPs) – UCC’s responsibility – were basically sound. At the same time they tried to distance themselves from anything that be might found to be problematic at the Bhopal plant. Hence, they also asserted: that the production of MIC [methyl isocyanate] in India, the siting of the plant and the quality of the materials used, were all the responsibility of UCIL and the Indian State; that exclusively Indian nationals managed the Bhopal plant; that UCIL (Union Carbide India Ltd) was an independent company responsible for its own affairs; that India’s cultural backwardness was responsible for the poor maintenance and management, poor planning procedures and the inadequate enforcement of safety regulations; and that the ‘accident’ was due to sabotage by an Indian national. Even now, in 2012, UCC ‘s representations of the causes, course and consequences of the disaster, its denial of responsibility and attempts to shift blame to Indians and India, and in particular an Indian saboteur remain the same – see the so-called Bhopal Information Center, established by UCC, at www. bhopal.com. 19 Continuing the history of UCC and UCIL In November 1973 UCC/CE and UCIL signed a Design Transfer Agreement, Article IV of which noted that UCC was providing “the best manufacturing information available,” and a Technical Services Agreement. These would enable UCIL to build a Sevin plant at Bhopal. The design was loosely based on a plant in Institute and while it allowed carbaryl (Sevin) to be produced in small or large batches by using chemical reactions between Alpha-Naphthol (aka 1-Naphthol) and MIC, “for economic reasons”, both the Alpha-Naphthol and MIC would be produced onsite – in the case of the latter, in such large quantities that special, large storage tanks would be required. UCC/UCE and UCIL agreed that the estimated cost of the plant should be revised down by UCIL to $20 million. In 1974 UCIL applied for a new licence, this time to produce up to 5,250 tons of Sevin in Bhopal annually. In 1975 the Government of India (GOI) agreed to provide an industrial (i.e. manufacturing) licence, but again included the condition that approximately a quarter of any monies required for the MIC/Sevin plant had to be raised by a new UCIL share issue in India. It estimated that the plant’s total cost would be ‘approximately $26,500,000’ and it authorised the issue of 3,294,500 new shares to Indian residents to raise ‘Rs 527.12 lakhs, approximately 22. 3 per cent of capital inancing’ [or $6.2m] which would bring “down UCC’s equity in UCIL to 50.9 per cent” (D’Silva 2006: 51). In order to accommodate the new Alpha-Naphthol, MIC, and Carbaryl plants and the attendant increased number of personnel, transportation, and so on. UCIL estimated that the chemical facility would need to increase in size from 5 acres to more than 80 acres. In 1967 there were only 300,000 people in Bhopal; by 1975 there were nearly 500,000 and shanty towns were springing up near the railway terminal and the bus station and thus near the UCIL facility. Nevertheless, UCIL proposed that they should expand the size of their then current site by leasing more land in its immediate vicinity. They were aware that to stay on this site would violate the requirement of the 1975 Bhopal Development Plan, that such “obnoxious industries” should 20 be in an industrial zone 25 kms away from the city centre, and that it also meant that they would ignore the order of the commissioner and director of town and country planning for the state that the manufacturing plant should be located well away from the city. UCIL’s response was to lobby the Madhya Pradesh and Federal authorities to overrule the Municipality; their lobbying efforts met with success since the state planning board classiied the plant as “general industry” rather than “hazardous industry” in a 1976 review. This decision allowed both ongoing activities and the new construction to go ahead at the existing location (Varma and Varma 2005: 4). After this decision was made, in 1977/1978, the GOI and UCC agreed that UCC’s equity would decrease from 60% to 50.9% (D’Silva 2006: 37), albeit retaining a majority ownership; new shares in UCIL were released for purchase by investors who already owned shares, be they individuals or Indian institutions, including different organs of the GOI. Construction of the enlarged plant began in 1979 under the supervision of the Bombay ofice of the British engineering company, Humphreys and Glasgow. Within a year the plant was completed and a year later it was producing MIC and the pesticide Sevin. This was a signiicant increase in the scale and complexity of the chemical facility and should have been accompanied by a greater degree of planning, tighter organization, increased monitoring, regular and timely maintenance and an increase in security. In 1984 UCC still controlled 50.9% of UCIL’s equity. Revisiting the Bhopal facility Since 1976, workers and their unions had expressed concern about safety and health hazards at the Bhopal plant. These concerns became more pressing after the MIC and Sevin plants went into production. There were three serious leaks from these plants between 1981 and early 1982, killing one worker and hospitalizing a number of others. 21 In May 1982, a UCC safety team monitored the plant and found 61 hazards, 30 of them considered major, of which 11 were in the phosgene/ MIC unit; areas of concern were described as “procedures training and enforcement together with attention to the equipment and mechanical deiciencies” (Everest 1987: 56). The recommendations of the report were not implemented: production simply carried on as dangerously as before. There were two more serious incidents that year. Following two decades of huge growth, encouraged by government “subsidies, tax breaks, low-cost loans and lax safety regulations”, the pesticides market in India had, by the end of the 1970’s, become extremely competitive. Indeed, by the beginning of the 1980’s, “pesticide demand in India had collapsed” (Shrivastava 1993: 258-60). This collapse was in part structural, due to the inlux of a great deal of agrochemical capital, leading to intense competition. But it was exacerbated by more contingent factors: agricultural production in India declined severely in 1980, and only recovered mildly in the next three years; weather conditions in 1982 and 1983 caused many farmers to abandon temporarily their use of pesticides (Shrivastava 1992: 30-5). The Bhopal facility broke even in 1981, but after that began to lose money. In May 1983 the two unions at the Bhopal plant were forced to sign a ‘memorandum of agreement’ with UCIL allowing cutbacks in stafing, and “eliminating such work practices which are not conducive to eficient working of the plant” (URG 1985a). By 1984, the workforce at the Bhopal facility was roughly half its 1980 size. New operatives were less qualiied and less well trained than before, and 150 operatives were taken from their trained details and used as loating labour (ICFTU/ICEF 1985). The number of supervisors was halved – meaning that they often had to manage more than one plant and had less specialist knowledge (Chouhan 1984: 12). The number of ield maintenance staff was halved, and, as maintenance became more and more sporadic, many problems were undiagnosed, with defective parts neither repaired nor replaced the chemical plants began to function poorly, making safe, eficient production dificult. Instrumentation became increasingly unreliable, 22 and safety and back up systems were increasingly in disrepair. Since SOPs were designed on the basis of fully functioning systems and adequate numbers of personnel, their absence forced both operators and supervisors to improvise solutions to problems, always then with the potential to create new problems. 23 Pesticide production: in theory and in practice The Carbaryl process in use in Bhopal involved a number of processes: a) it began with coke and oxygen producing Carbon Monoxide; b) the Carbon Monoxide interacted with Chlorine to produce Phosgene; c) puriied Phosgene and Methylamine, with Chloroform as a solvent, were reacted together to form MIC; d) Naphtholene was sulfonated to produce Alpha-Naphthol with a toxic side product, Beta-Naphthol, the removal of which proved intractable, hence the process was abandoned and UCIL had to rely on imports from UCC; e) MIC reacted with AlphaNaphthol to produce Carbaryl; f) Carbaryl was then formulated to produce Sevin. While only a small proportion of any batch of the MIC could be used immediately, the “economics” of this production process favoured its production in large batches. As a result, the design included 2 large 15,000-gallon tanks where the MIC could be stored for future use and a third 15,000-gallon tank, which, while usually used for the temporary storage of “impure” chemicals, could also be used as an overlow tank. Our focus here is primarily on the MIC, the MIC storage tanks, the Carbaryl/Sevin plants and their interconnections. Before returning to events on the night of the disaster, further contextualising comments are useful. First, between 1980-84, the entire work crew in the MIC unit dropped from 13 to 6 and their training was cut back from 6 months to 15 days. Second, the UCC safety manual instructed operators to make sure that the two MIC storage tanks (E610, E- 611) were no more than half full, and/or to keep one of the tanks empty at all times, and/or to transfer some of the MIC to the standby tank, E-619. The operators were instructed to keep each “tank’s temperature below 15 (degrees) C (59 degrees F) and preferably at about 0o C (32 o F)”, since MIC was signiicantly less reactive at that temperature and, in part for the same reason, it was necessary to maintain “an atmosphere of dry nitrogen, under slight pressure, [of approximately 2 pounds per square inch (psi)] in the vapor space of the storage tank” (cited in D’Silva 2006: 54-5). This pressure also helped exclude potential contaminants. Increasing the nitrogen pressure was integral to the movement of MIC from the tanks to the Carbaryl unit. 24 On the night of December 2nd/3rd 1984, there were startling discrepancies between what was mandated by the safety manual and by the SOPs and the actual condition of the MIC plant, the storage tanks, and the Carbaryl plant and their chemicals’ transferral systems (pipes, valves, and so on). First, Tank E-610 was not half empty but almost full with 42 tons of MIC, Tank E-611 contained 20 tons of MIC and even Tank E-619 was not empty but contained one ton of MIC. All three tanks and the transfer systems were compromised by extensive rust and corrosion. The transfer of the gas from Tank E-60 was made by dificult by the excessively low pressure of the Nitrogen and the fact that it had a defective valve (carbon steel valves were used at the factory, even though they corrode when exposed to acid). These deiciencies also made it dangerously easy for external contaminants to enter the tank, relating the potential for dangerous exothermic chemical reactions. The contents of these tanks had not been analysed since October 26th, the date the last batch of MIC had been produced and stored. According to the operators, the MIC tank pressure gauge had been malfunctioning for roughly a week. Other tanks were used rather than repairing the gauge. The build-up in temperature and pressure is believed to have affected the magnitude of the gas release. The readings of pressure and temperature for these tanks should have been taken every two hours, with any observed deviations being dealt with immediately; in fact, the frequency of readings had been changed from every 2 hours to every 8 hours. Some of the meters were not working properly. Then, even though it was winter in Bhopal, the lowest expected ambient temperature was only 15o C. The tanks were not being cooled so the internal temperature was around 20o C. This amount of stored MIC was in violation of all UCC safety standards, as was storing it above 0o C. The reason for this high temperature was that after the last batch of MIC had been produced and stored on October 26th, the Works Manager, decided to “shut down the principal safety system... because the factory was no longer active, these systems were no longer needed” and “no accident could occur in a factory that was no longer operating” (Lapierre and Moro 2002: 213). Consequences of this shutdown included saving 25 minimal costs by no longer refrigerating the MIC tanks – the refrigerant was later pumped out of the system and used elsewhere in the plant. The lare tower was also taken ofline for maintenance and repairs, as was the decontamination scrubber. Shrivastava described the plant at this point thus: “The working environment of the Bhopal plant tolerated negligence and a lack of safety consciousness among workers and managers. Employee morale was low because the plant was losing money and being considered for divestment.” (Shrivistava 1987: 41) Between 7-8 p.m. on the night of December 2nd, a relatively new and under- trained worker who had transferred MIC from the storage tanks into the carbaryl reactor earlier that day was given an additional task, one usually undertaken by maintenance staff: he was to use water to wash chemicals out of the pipes used for the earlier transfer, still attached at one end to the MIC storage tanks. He succeeded in lushing out the chemicals, but was unable to open all the stopcocks to get rid of all the water. Nor had he been told that a key safety measure was to seal pipes by inserting metal slip binds at each end. He reported to his supervisor that he could not rid the pipes of all the water, but the supervisor told him to continue lushing the pipes and keep the water running because the night shift would sort out the problem. The supervisor and the operator left when the night shift crew arrived. The latter also tried to empty the pipes, but failed and gave up. Water had now been running for at least four hours and some of it entered Tank E-610 unhindered by slip binds (not inserted), a valve (defective) or nitrogen pressure (too low to inhibit the movement of water), so starting an exothermic reaction which in turn produced others which ultimately produced the release of gas. UCC disputes the accuracy of the whole of this account; rather, it claims that water had been deliberately added to tank E-610. Workers reported smelling MIC, but could not locate its source. The MIC tank alarms had not worked for four years, thus the dangerous 26 practice of the human nose being the technology used to detect MIC – though it is only at 50 times its LTV that its smell can be detected. Workers informed a supervisor of the leak, who was sceptical that it was MIC and postponed investigating its source until after a tea break. Eventually, as the smell of MIC grew ever stronger, they informed their production manager that large quantities of gas were escaping (he ordered them to activate the lare tower), and they also called in the ire service. As the production manager should have known but in any case was promptly reminded, the lare tower was out of commission – it had been dismantled because its pipes were corroded and had not been replaced. Fire ighters tried to douse the gas but the water pressure available for the iremen’s hoses was insuficient for the water to reach the stack from which the gas was escaping. By then, Tank 610 was rumbling, concrete cracking, and its temperature was about 200 Celsius, the pressure at over 180 psi, 140 psi in excess of the tank’s rupture disk limit. Gases, vapours and liquids burst past the rupture disk, shot through the relief valve vent header, then by the vent gas scrubber, which was on standby and was not in working order, bypassed the inoperative lare tower and into the atmosphere. The operators could not dilute the MIC in tank E 610 since the tank was already overly full, while the emergency dump tank had a defective gauge indicating that it was also 22% full. Clearly, badly designed and maintained equipment, lack of spare parts, inadequate SOPs and untrained staff all contributed to the incident. Important too were ad hoc modiications to the plant designs, such as a jumper line that may well have been the means by which water entered the MIC tank. An even greater problem was the lack of preparedness for such a disaster, amounting to absolute indifference to the safety of the public. UCC argued that most of these deiciencies were the fault of UCIL, its workers, and the Indian government and, of course, the saboteur. 27 Chapter 3 Was the disaster ‘unforeseeable’? Were there discrepancies in regard to the standards of worker health and safety and environmental protection between different Union Carbide Corporation (UCC) facilities – whether directly owned and controlled by UCC itself or by one or more of its subsidiaries? If there were such discrepancies, is it reasonable to suggest that UCC and/or UCE and/or UCIL either knew about them or should have known about them? In particular, were there safer ways of making Sevin? Bhopal and Institute The shiny new MIC plant at Bhopal 28 One way to explore this latter, crucial question is by establishing whether or not MIC and/or Sevin were produced in the 1980s more safely at other UCC facilities. The irst and most obvious comparison is with the MIC/Sevin plant at Institute, West Virginia. While large amounts of MIC were stored at both Bhopal and Institute, at the latter the storage tanks were much larger, there was an additional dedicated dump system with a capacity of 42,000 gallons and an additional and more powerful emergency back-up system. But there were differences of another kind. As we have seen, the emergency safety systems at Bhopal were either out of commission or turned off but none of them, if they had been switched on and working, would have had the capacity to fulill their tasks: gas detection instrumentation was too insensitive, the refrigeration plant could not keep the MIC at a low enough temperature, the vent gas scrubber and lare tower were incapable of either dealing with the volume of escaped chemicals or with multi-phase rather than just gaseous emissions. Finally, the Bhopal storage tanks were of a type unsuitable for Indian climatic conditions. In other words, there was a mismatch between the potential demands that might be made on the safety systems and their capacity to deal with these. This was a design law premised on a willingness to take unconscionable risks: the safety of India and Indians was taken much less seriously than that of America and Americans. Given the degree of control exercised by UCC/UCE over UCIL (Union Carbide India Ltd.), there is every reason to believe that it not only knew of but also allowed, or even approved of, the “memorandum of agreement” signed in May 1983 between UCIL and the hourly paid plant operatives and their union. We referred to this in Chapter 2, and here we wish to focus on the following provisions: “The selection, placement, distribution, transfer, promotion of personnel, ixing of working hours and laying down of working programmes, planning and control of factory operations, introduction of new or improved production methods, expansion 29 of production facilities, establishment of quality standards, determination and assignment of workload, evaluation and classiication of jobs and establishment of production standards, maintenance of eficiency, maintenance of discipline in the factory ¼ are exclusively rights and responsibilities of the Management». (Cited in URG 1985a: 12) In practice this meant not merely a change but a reduction in standards, and that, even if changes violated SOPs, management had to be obeyed. Thus, contra the claims of Anderson and others, in many ways the Bhopal plant was an inferior plant to the UCC plant at Institute, West Virginia. Themistocles D’Silva, in his The Black Box of Bhopal: a Closer Look at the World’s Deadliest Industrial Disaster, alleges that to compare Bhopal and Institute is inappropriate because while the “technology sold to UCIL included process improvements made over the irst MIC plant at Institute, West Virginia”, the original plant was “built in 1965-1966”. The “MIC plant at Institute” was built much later, in 1978, and “is more streamlined and is a fully automated factory” (D’Silva 2006: 49). But, while accepting that some differences were due to the fact that these were based in part on fundamentally different designs, nevertheless some improvements, for example, enlarged MIC storage tanks, an additional dedicated dump system with a capacity of 42,000 gallons and an additional and more powerful emergency back-up system, could have been easily incorporated into the older design, particularly given that work on the Bhopal MIC and Sevin plants did not even start until 1979. The sabotage theory This is a useful place to address the question of the ‘sabotage theory’, which played a key role in UCC’s ‘deinitive version’ of the sequence of events that led to the leak at the plant. According to this ‘theory’, on the night of the incident a disgruntled employee who was not on duty removed a pressure gauge and then used a hose to put water into an 30 MIC tank; his intention was to spoil a batch of chemicals rather than create a disaster. This version of events, circulated to the media and to UCC personnel, was most fully articulated when it formed the basis of a paper presented by ‘independent consultant’ Dr. Ashok Kalelkar at a London conference in May 1988 (Kalelkar 1988). Kalelkar had in fact been a member of the team organized by UCC in March 1985, which even then had mooted the possibility of sabotage, although a lack of evidence meant, it claimed, that “it was unable to develop this theory further at the time”. Yet this ‘deinitive version’ was only the last in a series of such ‘theories’ involving alleged saboteurs. First, it had been claimed that the disaster itself was the result of the actions of careless or malicious employees who had placed a water line where a nitrogen line should have been used. The New York Times, on 26 March 1985, pointed out that neither an accidental nor a deliberate incorrect coupling were possible since the relevant nitrogen and water lines were of a different colour and the nozzles were of different sizes. That same day Union Carbide Chairman, Warren Anderson, had to withdraw the accusation at Congressional Hearings when he admitted that he had no evidence of sabotage. Then, between July 31, 1985 and January 3, 1986, UCC claimed that a group of Sikh extremists called the Black June Movement were responsible. But no such group was ever identiied in any context other than allegedly putting up posters about Union Carbide; moreover, it was virtually impossible for anybody to actually plan a disaster of this kind. Not surprisingly, this claim was also quietly abandoned. In August 1986 a speciic but unnamed employee was blamed — but it was not until May 1988 that all references to nitrogen lines were dropped and a pressure meter was mentioned. Of course, Union Carbide and UCIL were hoping, irst, to avoid vicarious liability on the ground that the employee would have been acting without authority and outside the course of his employment, and, secondly, to avoid liability under Rylands v. Fletcher, on the grounds that an employee who comes onto his employers’ premises without authority 31 and causes the escape of a dangerous thing is a ‘stranger’ for whose acts the occupier is not responsible. (Muchlinski 1987: 575). There is no dispute between UCC and its opponents that a key link in the causal chain leading to the disaster was the introduction of 120 gallons or more water into MIC storage Tank E-610 and that this produced an exothermic chemical reaction which in turn initiated many more. The major dispute remains whether the water entered the tank accidentally, as a consequence of UCC/UCE and UCIL using under-trained and inexperienced plant operatives working with defective equipment in an understaffed facility, or, as UCC has always argued, whether the presence of water was the result of a deliberate act of sabotage. UCC’s critics have also suggested that impurities in the tank may have independently contributed to the genesis of exothermic chemical reactions even before water was added and, further, these and other impurities such as phosgene and cyanide may have been signiicant toxic components of the deadly gas cloud. Perhaps the most elaborate development and defence of UCC’s arguments is to be found in D’Silva’s (2006) book, mentioned earlier. D’Silva worked as a research scientist in UCC’s Agricultural Chemicals Division for over 20 years. He was a member of its laboratory team that examined core samples taken from the residues left in the major source of the gas leak, Methyl Isocyanate (MIC) storage tank E-610, while another UCC team tried to determine which chemicals under what conditions could have produced this speciic residue and the gas cloud. D’Silva was satisied that his team identiied all of the chemicals that were in the residue, and that the other team had shown how, provided the temperature inside the tank never exceeded 275°C, multiple interactions involving MIC, water and chloroform, and then further interactions involving both the original interactants and the newly created chemicals, could have produced a residue with this chemical composition. This research, along with detective work involving additional nonlaboratory, ad hoc, experiments and data gathered from interviews, 32 provided the basis for three conident judgments. The irst judgment was that the UCC teams had demonstrated that water could not have accidentally entered Tank E-610. The second was that they could show how it had been added deliberately and even identify those responsible – they claimed that during a shift change a local pressure indicator was removed from Tank E-610 and water was introduced into the tank. D’Silva is not trained as a detective and hence is hardly qualiied to claim a detective’s authority: he is not skilled in investigation, in interrogation, in assessing the veracity and utility of what ‘persons of interest’ say or do. His own judgments of the credibility of witnesses is compromised by his identiication with UCC and UCIL and his trust in their executives; for example, he takes at face value statements by two of the eight UCIL executives subsequently convicted in June 2010 guilty of causing “death by neglect.” He tries to discredit UCC’s critics. He dismisses the evidence of Edward Munoz, on the grounds that he was bitter over losing his position with UCC in 1978 and for meretriciously accepting a consultancy fee from the plaintiff’s lawyers while acting as a witness for them – but he does not apply the same standards to himself and his friendly witnesses since he inds it quite acceptable that their testimony occurred when their salaries were paid by UCC/UCIL. He is also dismissive of another witness on the grounds that he was a disgruntled worker and an active trade unionist: contributory evidence it seems to his being the saboteur in question (D’Silva et al. 1986; D’Silva 2006). Since none of this evidence has been subjected to the rigours of the legal process, it is mere speculation and ultimately of little interest. Of much more signiicance, however, precisely because it is within the realm of D’Silva’s expertise, is his third judgment, which is that while there is no evidence that phosgene or hydrogen cyanide escaped into the air: “The materials that could have escaped out of the stack along with MIC would …include carbon dioxide, and varying amounts of ammonia, dimethylamine, trimethylamine, chloroform, dichloromethane, and hydrogen chloride. All these materials, 33 being heavier than air, would form a low–lying cloud in the vicinity of the plant and would probably not drift very far. The varied and unexplained medical conditions reported for the victims in different locations may be the result of exposure to any one or a combination of these materials”. (Emphasis added. D’Silva 2006: 110) We remain unconvinced that this is the only possible scenario. For example, there is good evidence that the temperature inside Tank E-120 would have at times exceeded 420o C (Ball 2010), leading to a decomposition of the MIC into the toxic chemicals cyanide (HCN) and Carbon Monoxide (CO) (Blake and Ijadi-Maghsoodi 1982) and the decomposition of other chemicals thereby eradicating any trace of them. Nevertheless, we believe that D’Silva has demonstrated that interactions between MIC, water and chloroform could have produced the chemicals his team identiied in the residue of Tank E-610 and those he identiies as escaping in a gaseous form. But this is an astonishing admission for it underscores that the MIC producing process at Bhopal would have been extraordinarily dangerous even if the plant had been in excellent condition. The Methyl Isocyanate plant at Bhopal now 34 This remarkable state of affairs generates three crucial, quite speciic questions.: [1] Why was it possible to remove a pressure dial by hand when this was connected to such a toxic and volatile chemical? [2], Why was there such inadequate security to protect the plant from foolish or mischievous strangers? [3] Why was there water in the area? As a leading specialist on safety in chemical plants has written, if water is not there ”it cannot leak in, no matter how many valves leak or how many errors are made” (Kletz 1988: 86). This discussion makes it clear that Bhopal was a less safe plant than that at Institute. This point being made, it needs emphasizing that, if not as dangerous as that at Bhopal, the plant at Institute was still a dangerous place to be employed or to have as a neighbour. In the immediate aftermath of the disaster, UCC claimed that at the Institute plant there had only been 28 MIC accidental releases in the previous ive years, yet within days of this statement it changed its story and disclosed that there had been 61 methyl isocyanate (MIC), 107 phosgene, and 22 mixed MIC-phosgene releases in that period. UCC subsequently admitted that it had been less than honest about its workplace safety performance too and it was ined for misleading OSHA inspectors (Jones 1988: 163186; Pearce 1990). Moreover, as a result of trade union pressure, UCC had already adopted in its chemical facility in Béziers, France, a safer just-in-time production process that could use small amounts of MIC, stored in sealed and sturdy stainless steel drums each containing only 213 kg of MIC, all of which was immediately consumed in the production of Carbaryl, thus eliminating the need to store MIC. It is clear then that: Bhopal (owned by UCIL, owned and controlled by UCE, itself, owned and controlled by UCC) was less safe than Institute (owned and controlled by UCC) which was less safe than Béziers (also controlled by UCC). 35 Thus, there were known discrepancies in worker health and safety and environmental protection standards between different UCC facilities – and that, in part, these discrepancies can be explained through the prism of power relations within the respective plants. Moreover, all was not well in France either. However good the Bèziers production process, safety was undermined in another part of the commodity chain since piece work pressures at the Marseilles dock reduced the possibility of taking the necessary care and time required to handle the barrels of MIC safely. Now, D’Silva acknowledges that once water entered the MIC tank and set in motion an exothermic chemical reaction “the Bhopal tragedy … was aggravated by management miscalculations” (D’Silva 2006: 137), which included ‘[t]he needless storage of large quantities of [MIC] in very large containers for inordinately long periods as well as insuficient caution in design”, and he concludes that “the combination of conditions for the accident were inherent and extant” (D’Silva 2006: 242). If these were ‘inherent and extant’, any number of unexpected events could have caused a runaway exothermic reaction that the safety systems in place could not have contained. Thus the more fundamental issue is the ease with which a disaster of almost unprecedented scale could occur. So, even if we accepted that the incident was caused by sabotage, this only serves to demonstrate how unsafe the actually plant was. That is, any sabotage theory itself only serves to underline UCC, UCE and UCIL’s responsibility for the gas leak and its consequences. We do not accept the ‘sabotage theory’ but this is a very secondary question. How the water entered the tank is of much less signiicance than the fact that it could do so, that the “accident” could escalate into a massive gas leak, and that this then gassed a nearby population of 200,000 people never having been told of the dangers to which they were being exposed and for whom no evacuation plan had been designed, no medical services equipped. On these matters, even D’Silva’s lawed book makes available new information and, in fact, provides evidence that inadvertently supports the interpretations developed by Sarangi, Bee and other campaigners for justice. 36 Bayer MIC and Methomyl units, West Virginia In December 1986, UCC sold its worldwide Agricultural Products business to the French chemical and pharmaceuticals company, Rhone Poulenc, for $585 million. The deal included Rhone-Poulenc’s purchase of Union Carbide’s chemical plant in Institute, West Virginia. In January 1991, the EPA issued a RCRA corrective action permit to the company to proceed with site clean-up. Union Carbide was approved as the site remediator and it is still engaged in this work although on 4 August 1999 Union Carbide became a wholly owned subsidiary of The Dow Chemical Company. In, 2002, two years after the merger of Rhone-Poulenc and AgrEvo to become Aventis, the new company sold the facility to Bayer Crop Science. In 2009 there was an explosion during start-up of the Methomyl unit. A report for the House Energy and Commerce Committee found that the explosion “came dangerously close” to igniting several tons of MIC stored nearby. The explosion and resulting ire were caused by a runaway reaction. The US Chemical Safety Board reported that critical safety features must have been overridden to reach the required temperature in the unit that exploded. 37 Bayer MIC and Methomyl units, West Virginia, after explosion (For a contextualization of this event see Mac Sheoin 2010 and for an extraordinary and horrifying video see the US Chemical Safety Board website http://www.csb.gov/investigations/detail.aspx?SID=3 38 Chapter 4 The ‘settlement’ What remains unclariied is the relationship between UCC [Union Carbide], UCE [Union Carbide Eastern] and UCIL [Union Carbide India]. After all, there has been no legal determination of who was responsible for the tragedy of Bhopal. But, even if there had been, it is unlikely – given present laws, legal doctrines and legal practice – that an adequate accounting would be the result. We can, however, address this issue of responsibility sociologically – such an analysis in fact reveals the legal posturings of UCC have plausibility only when read in the context of economic and political power rather than the realities of ownership, control and thus responsibility. UCC, UCE and UCIL: Title, control and possession A useful way to address responsibility – particularly in the case of corporations with subsidiaries, joint ventures, involving interlocking ownership and interlocking directorships, and so on – is to focus on three different forms of property relations found in the sphere of economic production: title, control and possession (Jones 1982: 76-8). To simplify somewhat: title refers to how economic production is inanced, how investments and contracts are safeguarded, and how the distribution of proits to different title holders is determined; control refers to who has the right and ability to decide which means of production should be purchased, how they should used, and whether or not they should be disposed of; and possession refers to the day to day management of 39 a production process including the determination of work practices. At this point it is important to return to UCC/UCE and UCIL. As we have seen, the relationship between UCC/UCE and UCIL was the latest in a long line of such relationships that began with National Carbon Company and the Indian National Carbon. During most of this time the parent company owned 100% of the equity in the subsidiary, but by 1956 the percentage was no longer 100% but 60%, later, in 1978, reduced to 50.9%. In 1984 UCC/UCE still owned 50.9% of UCIL’s stock with the other 49.1% owned by private Indian investors and by different levels of the Indian government. This was still a majority shareholding. The signiicance of this to UCC/UCE and to UCIL is made crystal clear in UCC’s charter: this states unequivocally that the objectives of the corporation would be realised through a management system which distinguished between ‘Category I policies’, which provide the worldwide directives of the company, and ‘Category II policies’, which are operational procedures. “Both types of policy are issued to subsidiaries (afiliates in which Union Carbide has more than 50% ownership) for adoption and implementation. A subsidiary cannot change the substance of any policy without review by the parent.” (Muchlinski 1987: italics added) Moreover, the exercise of UCC/UCE’s ‘constitutional right’ to require UCIL’s management to implement its policies was facilitated by its great inluence on the composition of executive bodies at UCIL. Thus, while it is true that the 5 members of UCC/UCE were in the minority in the 13-member Board of Directors, they were in a clear majority on the 7-member executive committee. UCC/UCE were, in reality, the “directing mind” of UCIL. UCC/UCE played the key role in determining how to distribute proits between dividends, loan payments and new investments (UCC’s approval was necessary for any capital expenditure in excess of $500,000). Their ability to have the major say in what would be done with the fruits of the enterprise and their right to the greatest percentage of the proits meant that their title was preeminent. 40 Again, UCC/UCE, as the “directing mind” of UCIL, was able to determine the nature and purpose of UCIL’s production facilities and the marketing strategies it followed (Morehouse and Subramaniam 1986: 17). They had played the key role in determining the kind of production process set up in Bhopal and, in the 1970s, UCC/UCE had “insisted that large amounts of MIC be stored there over UCIL’s objections ¼ (T)he UCIL position [was] that only token storage [of the chemical at Bhopal] was necessary” (Everest 1986: 31). The continued existence of the Bhopal plant was UCC/UCE’s decision: it had commissioned a preliminary study of the cost of dismantling the MIC unit and other pesticide production facilities at Bhopal (Dinham et al. 1986: 27). Despite such a threat to its existence, UCIL was not in a position to “go to a competitor of Union Carbide and buy a pesticide plant” ready-made; and it would be prohibitively expensive to develop a ‘pesticides plant from scratch’” (Muchlinski 1987: 582). UCC/UCE had ‘control’ over UCIL and, in particular, its Bhopal facility. But it could also exercise possession with and through UCIL even though the workforce’s experience of the Company was largely through the UCIL management, which, formally, had extensive, indeed draconian powers, over the workforce. Nevertheless, at the Bhopal facility, UCC/ UCE monitored safety procedures and UCIL was contractually required to rely upon it for technological assistance and updates. Indeed, UCC received signiicant revenues from its licensing, managerial, monitoring and marketing activities, a not atypical arrangement when transnational corporations [TNCs] engage in joint ventures in less developed countries (Kolko 1988: 165). UCC had the right to intervene in day-today matters if safety was affected. Detailed reports on safety and related matters were sent to UCC every three to six months (Everest 1987: 171). In short, then, even though it is clear that the actual social relations in the individual enterprises were ‘lived’ and fulilled by speciic Indian managerial personnel (and individual workers), UCC/UCE ‘possessed’ UCIL; or, it is perhaps more accurate to say that it possessed UCIL when it so wished. 41 Control and possession seem almost synonymous but they differ somewhat, for example, while possession always presupposes control, control can be exercised without possession. A parent company may ind it as advantageous to exercise as much centralised control over a subsidiary and its production processes as it might do over its own production processes. On occasion, however, it may give a subsidiary a great deal of independence in the way that it conducts its search for proits. But if it does so, it usually requires the subsidiary at the same time to abide by strict inancial targets, typically a speciied annual return on the capital tied up in it, and to implement the parent company’s SOPs. In these circumstances, to some extent, it has surrendered possession but it has retained control over its subsidiary. This arrangement has two advantages for the parent company. First, it is possible to employ, relatively cheaply, well qualiied and appropriately trained local managers who know how to organize themselves and others to achieve organizational goals, and who, with their extensive local knowledge and local contacts, can do business and probably make proits there effectively. Second, through such ‘government at a distance’ (Callon and Latour 198; Miller and Rose 1990) and by limiting the information that it is recorded as receiving to inancial statements, the parent company may create a situation of deniability, a ‘contrived ignorance’ (Luban 1999) of any problematic activity by the subsidiary. Then, if in conducting its business, the subsidiary harms people or the environment, violates human rights, violates laws, customs or moralities, and so on, those prosecuted or morally censured are likely to be the local managers alone (Coffee 1981: 389). Further, in light of the goals that they are emphasising at one time or another and according to changes in their circumstances, corporations may be able to switch from one mode of organization and control to another, and back again, and so on. Whichever mode the subsidiary is in is determined by the controlling power of the parent (Pearce 2001). There is strong evidence that from early on in the planning of the Sevin plant at the Bhopal facility a decision was made that the health of workers 42 and local inhabitants was low on the list of priorities. As indicated earlier, in March 1972 there was a generally positive response by the Indian government to UCC/UCE’s 1970 application to manufacture MIC-based pesticides at Bhopal but there was also a requirement that a quarter of the new investment for the plant should be raised by new share offerings to Indian investors. Further, this issue was revisited in 1974-5, inally culminating in 1977-8 in the well-received exclusive offer of shares to those who were already UCIL shareholders. In 2002, important documents were unearthed which show not only that UCC/UCE was concerned about the issue of these shares, but also reveal a great deal about responsibility for the disaster (Edwards and Fontenot 2007). The documents in question were prepared for the 2 December 1973 meeting of the UCE Management Committee, whose members included Warren Anderson. They consisted of a memo on the subject of UCIL’s ‘Methyl Isocyanate-Based Agricultural Chemical Project,’ a copy of a UCC report evaluating the project, and a copy of the 1972 UCC Capital-Budget-Proposal (McKenzie 2002: 1-2). In 1972 UCC/UCE was certainly interested in proitable overseas expansion of a subsidiary and it was pleased that this project would not require it to engage in any new capital expenditure, since UCIL was going to provide all the funds. However, in the Capital-Budget-Proposal document, concern was expressed that the proposed expenditure of $28 million would entail a share issue of $7 million, thus reducing UCC’s share of equity to a point less than 53.5 % ownership of the company, meaning that its position as the majority shareholder would become increasingly precarious (the absolute minimum acceptable to UCC at this time was a 51% ownership). In response, the authors of the document advocated “negotiation with the GOI to reduce the amount of investment from approximately $28.0 million (RS 215 million) to approximately $20.6 million (Rs. 163 million). The negotiated amounts will be mainly on the Sevin project.” (http://www.bhopal.net/oldsite/ carbidedocuments/completepages/02dec1973capitalbudget/index. html accessed 25 Feb.2010). 43 It is clear that UCIL presented to UCC/UCE at least two distinct proposals for the MIC/Sevin plants at Bhopal. The irst speciied a set of more expensive, thoroughly tested, reliable technologies. The second proposal substituted for the irst set of technologies another set which were much cheaper but which were more likely to malfunction and hence put at risk plant operatives and the surrounding communities. The fact that these two sets of technologies had been under consideration is made clear in the report attached to a memo sent to the UCE management committee which included Warren Anderson, CEO of UCC: “The comparative risk of poor performance and of consequent need for further investment to correct it is considerably higher in the UCIL operation than it would be had proven technology been followed throughout. CO and 1—Naphthol processes have not been tried commercially and even the MIC to Sevin process, as developed by UCC, has had only a limited trial run. Furthermore, while similar waste streams have been handled elsewhere, this particular combination of materials to be disposed of is new and accordingly, affords further chance for dificulty. In short, it can be anticipated that there will be interruptions in operations and delays in reaching capacity or product quality that might have been avoided by adoption of proven technology. UCIL inds the business risk in the proposed mode of operation acceptable, however, in view of the desired long-term objectives of minimum capital and foreign exchange expenditures. As long as UCIL is diligent in pursuing solutions, it is their feeling any shortfalls can be mitigated by imports. UCC concurs.” (UCE 1972, Excerpted from http://www.bhopal.net/oldsite/carbidedocuments/completepages/02 dec1973projectproposal/index.html accessed 25 Feb.2011) Thus UCC/UCE’s solution was to reduce costs, particularly in the case of the Sevin plant, by signiicantly downgrading the quality of the technologies that would be used at Bhopal. The second proposal was 44 chosen and UCC/UCE clearly understood the implications of this choice. The report was clear that producing Alpha-Naphthol by sulfonating Naphthalene was to use an untried process, one dangerous since it also produced Beta-Naphthol as a toxic side product. There was an alternative safer program but this was more expensive (D’Silva 2006: 68). In 1982 the Alpha-Naphthol plant was closed down and UCC began importing Alpha-Nathphalene from America. But, of course, there were warnings about the MIC plant too and these were simply ignored. To read this memo and its accompanying documents, and then to re-read Article IV in the 1973 Design Transfer Agreement which claimed it was “the best manufacturing information available”, is to feel confounded by the degree of duplicity and callousness of those who owned and controlled UCC. With a grim ittingness, the memo was sent on 2 December 1973, eleven years to the day before the leak that began in the MIC unit and its storage tank, leading to the Bhopal disaster. The cost to the company and its owners It seems clear to us on this basis that the contentions made by UCC concerning the Bhopal disaster in its publicity and its legal arguments do not stand up to scrutiny. Let us recapitulate our argument. UCIL was not an independent company; nor was it Indian backwardness that was responsible for the poor state of the Bhopal plant and its unsafe manufacturing practices. The ‘sabotage’ theory has been presented in a number of guises, yet remains unsubstantiated. The Bhopal plant’s design and standard operating procedures were inadequate and they were the responsibility of UCC not UCIL. Bhopal was an inferior plant 45 to that at Institute, West Virginia, but this plant was not safe either. Indeed, contrary to the version of the history of its operations presented by the Company, UCC has long been a prime example of ‘toxic capital’. Yet to a large extent it was UCC’s ability to achieve plausibility that allowed it to secure such a small settlement. The initial sum demanded by the Indian government had been $3.3 billion. This was anything but excessive, and included no element of punitive damages. In fact, on 14 February 1989, UCC and the Indian government, the latter acting on behalf of the victims of the Bhopal tragedy, reached an outofcourt settlement of $470 million. It was agreed that this settlement would render UCC immune from all impending litigation, including criminal charges. The money was to compensate the families of the 3,329 people oficially recognized by the Indian government as having died as a result of the tragedy and the 20,000 seriously injured that it accepted as bona ide surviving victims. Why did UCC agree to the sum of $470 million? First, because UCC had managed to severely limit both the number of “legitimate” claimants and the level at which they would be compensated. Second, because for a company with assets of $10 billion it was no great inancial burden. Insurance covered approximately $200 million of these costs (Fischer 1996: 262) and the other $270 million was covered by a retrospective levy of 50 cents on the 1988 shareholders dividend reducing it from $1.59 per share to $1.09 a share. This $270 million must be compared with the $1 billion paid out to the shareholders in 1986. But why did the government of India accept the settlement? A large part of the reason was UCC’s success in having the case tried in India rather than in the US. UCC argued that the witnesses to the disaster, the victims, the key players, the documentation and evidence were all in Bhopal, where the UCIL plant was ”managed, operated, and maintained exclusively by Indians residing in India, more than 8,000 miles away”. The Company claimed that the real reason for the attempt to have the case tried in the US was the potential for a large settlement: “as a moth 46 to the light, so is a litigation drawn to the United States” (cited in Baxi 1986). On the question of litigation, UCC’s particular (and real) concerns have to be related to the general interests of transnational capital whose Third World operations might be threatened by any settlement with a punitive element. Indeed, the Bhopal victims and the Indian government had wanted the trial in the US, providing persuasive reasons for this: that there was such a backlog of cases in India that the trial would take an inordinate amount of time; that tort law was underdeveloped and there was a lack of experienced legal experts; that there were inadequate discovery procedures in India and the laws were constructed around doctrines of negligence rather than strict liability; that this was largely due to the heritage of colonialism; that UCIL’s assets in India were worth less than $100 million; and, inally, and most important of all, that UCC controlled UCIL and the relevant documents and personnel were to be found in the US and not in India: “Key management personnel of multinationals exercise a closely held power, which is neither restricted by national boundaries nor effectively controlled by international law. The complex corporate structure of the multinational, with networks of subsidiaries and subdivisions, makes it exceedingly dificult or even impossible to pinpoint responsibility for the damage caused by the enterprise to discrete corporate units or individuals. In reality there is but one entity, the monolithic multinational that is responsible for the design, development and dissemination of information and technology worldwide. (Afidavit of the Union of India, US District Court, South District of New York, 8 April 1985, cited in Hazarika 1987: 112) Judge Keenan, however, decided that the trial would be held in India but with three conditions: that UCC should itself consent to be tried in India; that it should accept the judgments of the courts there; and that it should be willing to be subject to discovery under the model of the United States federal rules and civil procedure (Hazarika 1987: 128). 47 UCC accepted the irst two conditions – though, as we have noted in Chapter One, neither the company nor its CEO Warren Anderson attended the court cases which conirmed their legal status as absconders while convicting local, Indian, plant management. But the company appealed against the third of Keenan’s conditions, claiming that it was unfair for the Indian government to have unrestricted access to its records when its own access to the records of the Indian government was to be more limited. Keenan himself had implicitly indicated sympathy to such a plea when he wrote in a footnote that while “the Court feels it would be fair to bind the plaintiffs to American discovery rules, too, it has no authority to do so” (cited in Baxi 1986: 8). Not surprisingly, UCC won its appeal so that instead of using American discovery procedures – which had made possible the successful actions against asbestos producers, such as Johns Manville – the inadequate Indian, or rather Anglo-Indian, discovery procedures obtained. An apparently even-handed settlement was nothing of the sort. Essentially, the American courts had accepted UCC’s presentation of the case - that the crucial evidence and events were in India - and simply ignored that of the Indian government. Baxi summarises Keenan’s reasoning on this point: “India’s claim was that Union Carbide was ‘the creator of the design used in the Bhopal plant, and directed UCIL’s relatively minor detailing program’, consequently only an American forum had the best access to the sources of proof. The court decides, in response, that ‘most of the documentary evidence concerning design, safety, training, safety and startups is to be found in India’. In doing so, Judge Keenan relies on the afidavits of Messrs. Brown, Woomer and Dutta, all Union Carbide employees. The two agreements between UCIL and the Union Carbide (‘Design Transfer Agreement’ and ‘Technical Service Agreements’) were based on an arms-length corporate practice”. (Baxi 1986: 23) We have shown that to take such arms-length agreements at face value is ludicrous since it ignores the considerable evidence of the complex 48 control exercised by UCC over its subsidiaries. Furthermore, there were also good legal grounds for deciding differently. Similarly ludicrous is the fact that the American courts accepted that the interests of a sovereign (and democratic) state and a licensed (and autocratic) corporation were of an equivalent value. They did not believe that a government charged with the security of more than 650 million people had more speciic and legitimate concerns with secrecy than that of a corporation. Perhaps this was related to the fact that this corporation was a large America industrial (the 35th largest in 1984), with sales of $9.5 billion and assets of $11 billion. Union Carbide did, however, make one particularly telling series of claims, namely that: “The Indian government may have granted a licence for the Bhopal plant without adequate checks on the plant; that the relevant controlling agencies responsible for the plant were grossly understaffed, lacked powers and had little impact on conditions in the ield. More particularly, the Bhopal department of labour ofice had only two inspectors, neither of who had any knowledge of chemical hazards.” (Muchlinski 1987: 575) In other words, the Indian government bore a major responsibility for the Bhopal disaster. Now, there is strong evidence that Indian regulatory agencies were indeed inadequate (Cassels 1993; Everest 1986; Hazarika 1987). But in arguing this position Union Carbide was being disingenuous. First, because it had itself cultivated relationships with personnel at all levels of the Indian state (ARENA 1985) and seems to have itself been party to the circumvention of regulations (Granada 1986). Second, because effective regulation, in what was informally a partially ‘deregulated’ country, would have curtailed UCC’s ability to export hazard; and no corporation would be left free, by the law or by its shareholders, to encourage publicly, whether altruistically or autonomously, the development of measures which would restrict its own freedom to locate production (Pearce and Tombs 1998; Jensen 49 and Meckling, 1976; Bakan 2004). In the latter context, then, it is worth emphasising that UCC is a paradigmatic instance of ‘toxic capital’. UCC’s slogan of ‘Safety at any Cost’ portrays a corporate image that is not borne out by reality – a reality which extends from the Gauley Bridge disaster in West Virginia where 476 deaths from silicosis were recorded, its role in the development and use of the carcinogen vinyl chloride, its nuclear weapons manufacturing plant in Oak Ridge, Tennessee, its dangerous graphite electrodes production facilities in Yabucoa, Puerto Rico (Agarwal et al. 1985: 1423) and its plant in Alloy, West Virginia which alone puts ”out more pollution annually than the total emitted in New York City in a year” (New York Times, 10 September 1989). But UCC is far from alone. ‘Chemical catastrophe’ – from multi-fatality incidents to environmental degradation on an almost unimaginable scale, not to mention the plethora of silent killers to which the industry exposes workers, consumers and residents – is an inherent element of chemicals production, distribution and use across both the so-called developed and developing worlds (MacSheoin, 2010). Flowers at the altar of proit and power? In several respects, the ’settlement’ was to prove far from the end of the matter. First, while Union Carbide, now owned by Dow Chemical, paid out £250m in compensation to residents in 1989, only a part of that sum has been distributed. Successful claims have resulted in minimal payments, which began only in 1992. In July 2004, India’s Supreme Court ordered the government to distribute money held in the bank, currently worth £174m, to the 566,876 Bhopal survivors and relatives whose claims have been successfully lodged. As we write, legal and political struggles over the 50 level and distribution of the compensation package continue (see, for example, http://bhopal.net/). Second, and as we noted in Chapter One, not only has the settlement itself has been challenged but attempts at legal redress have been subsequently resurrected – a struggle which also continues. Third, the settlement in any case is only explicable as a sordid compromise forced upon the weak by the strong, rather than something determined according to equity and the facts of the case. Bhopal cannot be considered merely an unforeseen and unforeseeable event from which the chemical industry could learn. UCC, with the aid of the American chemical industry, the American state and the American courts had succeeded, albeit perhaps only temporarily, in avoiding responsibility for the disaster and in imposing an insulting and inequitable settlement. 51 Chapter 5 Criminal, immoral, or the cost of ‘business as usual’? Beloved, our people drink up the ilthy water Heroines and heroes take deep breaths of killing air Our guts and lungs are illed with bitter chemistry, Poison, pain and cancers we lock inside our bodies, Accumulating toxic wealth, letting no one share it. Law, progress, justice, these are the names of our diseases. (Prem Nizar Hameed) The legal proceedings that have followed the mass killings and environmental destruction, UCC (Union Carbide) and Warren Andersen’s status as absconders from justice, and the re-opening of the out-of-court settlement are all clear indicators of illegality in the production and wake of the events of December 1984. We have demonstrated here that, sociologically at least, we can re-cast these events as criminal. Moreover, the enduring harms to which Prem Nizar Hameed points, above, are indications that UCC, UCIL and Dow should all be objects of moral condemnation – while Dow’s efforts to ingratiate themselves with the international community as sponsors of the 2012 London Olympics must continue to be resisted. 52 Whether we effectively label Bhopal as crime, or harm, or both, for many economists, what happened at Bhopal is simply a cost of doing business – negative externalities, borne by people or environments, for which the latter can be compensated, thus forcing (some of) the costs back onto the corporation which produced them. Neo-classical, and, above all, neo-liberal economists, believe that, in principle and in the name of eficiency, all relations involved in the production, distribution and use of goods and services should be organised in and through a ‘competitive market system’ – a “supply-demand-price mechanism” (Neale 1971: 96). For such economists, there are two major factors which inhibit this ‘pure’ form of capitalism. First, there are inevitably ‘market failures’. These are sometimes because the potential market is relatively limited compared to the high costs required to produce goods for it and sometimes because many human beings, much of the time, are fools or knaves. Any suspicion that trading partners are inept or venal justiies surveillance and disciplinary practices which may constitute a signiicant additional transaction cost. This may be reduced if authoritarian relations in hierarchical organisations replace sets of market relations. Second, there are externalities. Trading partners in one market may inlict collateral beneits or damages on actors in other markets without compensation (Blum 1998: 4). In this case, then, the major focus is not on the costs and beneits accrued by contracting parties involved in a particular private economic exchange, but rather on their effects on other sets of private economic exchanges. In the case of negative externalities, simple consensual solutions may be arrived at by negotiations between the parties, or failing that through negotiations subject to civil law, even tort law. A typical example of a positive externality is that a landowner planting a forest upstream may improve the quality of the water on somebody else’s land downstream. A typical example of a negative externality is the polluting side effects of an industrial production process. Both negative and positive externalities are construed on the basis of markets in property rights on the assumption that everything has a price. 53 When faced with negative externalities, most people desire compensation of some kind. Delayed trains, uneven pavements, lost baggage and even ‘missold’ payment protection insurance, for example, may be irksome, in varying degrees, but they are mostly little more than nuisances and certainly do not threaten the life, limb or the general health of oneself or one’s family, friends, colleagues, communities. In such cases, monetary compensation is often enough for inconveniences caused. However, when life, limb and general health are involved, people are not concerned only with compensation but often also with punitive damages as a potential deterrent to potentially harmful conduct. They also demand something intangible, not reducible to these former, phenomena, which they often term ‘justice’. By contrast, corporations routinely take risks, knowing these will may or are likely to endanger the lives of others, calculating the potential costs of doing so and protecting themselves from these by insurance cover – then, under the cover of ‘commercial secrecy’, hide the dangers that they face from the likely victims. UCC/UCE and UCIL assumed that assigning a price to things, to life and limb, to relationships, left it legally protected because (a little) money can compensate victims for any loss – or should do so. This assumption informed Union Carbide’s way of doing business, its reckless exposure of workers to unsafe working conditions associated with the use and production of toxic chemicals, and its indifference to the risks to the nearby communities kept ignorant of what was being done on their doorsteps. It decided it was cost effective to put these particular people at risk – after all, the cost of compensation depends on the particular economic value given different lives. 54 The people of Bhopal have since shown that to help survivors and their families live with as much dignity as can be salvaged, to provide medical care and employment, to rebuild shattered communities, they need real compensation, not a sum that values their lives as worth one twentieth or less of those in the West. But this is no admission that any amount of compensation can make up for the loss of a mother, a son, a friend, or a trusted work colleague. For many of the victims in Bhopal, much remains to be done: the guilty must be brought to justice and punitive damages imposed; Dow and its shareholders must be made to clean up the toxic mess left behind in Bhopal; offers of no-fault cleanups, as suggested by Tata and its Indian and international corporate allies, need to be resisted. Then, perhaps then, may there be some smallest indication of justice being done. More generally, of course, corporate charters need to be rescinded and dissolved: for this is the only basis on which they, and we too, might look forward to NO MORE BHOPALS. 55 56 Bibliography Internet references are underlined and have their links built in to their titles. Abraham, M. (1985) The Lessons of Bhopal: a community action resource manual on hazardous technologies, Penang: International Organization of Consumers Unions. Agarwal, A., Merriield, J., Tandon, R. (1985) No Place to Run: Local Realities and Global Issues of the Bhopal Disaster, New Market, Tennessee: Highlander Center and Society for Participatory Research in Asia. June. Amnesty International (2004) Clouds of Injustice. 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