Can anyone defend disposal of toxic waste from Bhopal factory of Union Carbide Corporation (UCC), Dow Chemicals Company, world's third largest chemical company without disclosing papers and reports of Madhya Pradesh (MP) High Court judges led Inquiry Commissions led by Justices N K Singh and Shanti Lal Kochar which probed the world's worst industrial disaster of 1984?
The primary constituents of concern in the toxic waste are: benzene, ethylbenzene, toluene, chlorobenzene, dichlorobenzene, dichloropropane, trichloroethene and vinyl chloride.
In 1997, National Environmental Engineering Research Institute (NEERI) was commissioned to find out the extent of contamination at the Bhopal plant site. NEERI found high levels of toxins like sevin (carbaryl), lindane and alpha napthol were reported in its findings. In 1998, MP government took over Bhopal plant site. In 1999, Greenpeace conducted study which detected huge level of contamination around Bhopal plant. Activists sought legal remedies in US courts against UCC for environmental harm. In 2001, Dow completed acquisition of UCC. UCC became fully owned subsidiary of Dow. In 2004, Alok Pratap Singh of SUCI filed a public interest litigation in MP High Court praying for clean-up and immediate action of the factory site by Dow. In 2005, High Court set up a task force under the chairmanship of secretary, department of chemicals and petrochemicals, Government of India for removal of toxic waste from the plant. On May 13, 2005, the High Court's order was amended to include K P Nyati of Confederation of Indian Industry (CII) in the committee.
On May 31, 2005, the first meeting of the task force was held in New Delhi. MP Pollution Control Board (MPPCB) was chosen to act as the project coordinator for the work. CII suggested that the secured landfill site in Indore which is owned by Ramky Enviro Engineers Ltd will be suitable for the disposal of the toxic waste. The task force suggests phase-wise treatment of waste. For in-situ remediation of contaminated soil and remediation of groundwater, NEERI, National Geophysical Research Institute (NGRI) and the Indian Institute of Chemical Technology (IICT) were assigned the study by the task force. MP High Court ordered NEERI to undertake pre-treatment study. The contract for pre-treatment and packaging of the collected waste, about 390 tonnes was given to Hyderabad based company Ramky Enviro Engineers Limited. It emerged that 40 tonnes of the waste was found to be suitable for landfills.
On July 4, 2005, the second meeting of the task force was held. The progress made in phase I work (collection of waste and preliminary analysis of samples) was reported. For phase III (dismantling and decommissioning of the plant), the IICT proposal of Rs 121.22 crore was discussed. The MP government communicated that the plant should not be dismantled and a memorial built at the site.
On October 18, 2005, at the fifth meeting, the task force was informed by Central Pollution Control Board (CPCB) that the Gujarat Pollution Control Board (GPCB) has no objection for the transportation of tarry waste to the state. In 2006, the technical sub-committee set up under the task force is expanded to co-opt two members: P M Bhargava (formerly with the Centre for Cellular and Molecular Biology) and J. P. Gupta, Gujarat Energy Research and Management Institute. At the ninth meeting, on October 16, 2006, the task force discussed the status and profile of waste tested in laboratories. It was informed that Gujarat government will be informed that the quantity of waste to be sent for incineration is much higher. The cost of transportation and disposal was going to be borne by the Union and state government in the ratio of 50:50 vide the High Court's order of March 30, 2005.
An the tenth meeting it was agreed that the Court would be informed that the cost of incineration would be Rs 2 crore. In February 2007, MP High Court directed that 350 tonnes should be sent for incineration to BEIL in Ankleshwar, Gujarat and the remaining 40 tonnes of lime sludge transported to the landfill in Pithampur. In October 2007, responding to the protests from environmental groups within the state, Gujarat government withdrew its NOC for one-time disposal of waste from Bhopal. In June 2008, 40 tonnes of hazardous waste was sent to the landfill site at Pithampur in Dhar district of Madhya Pradesh. It was alleged that the transfer of the waste was in gross violation of hazardous waste rules under the Environment Protection Act, 1986 as the landfill site of Ramky in Pithampur is within 500 metres of a habitation area.
In June 2008, at the fourteenth meeting, the task force agreed to look for alternatives to Akleshwar incinerator in Maharashtra and Andhra Pradesh. NEERI and NGRI were required to complete the study by June 2010. In August 2008, Director of the Defence Research and Development Establishment, Ministry of Defence, Gwalior wrote to the Union government wherein it was claimed that the findings of the toxicity tests show that waste has very low mammalian toxicity and are non-skin irritants.
In December 2008, MP High Court reinstated its order to Gujarat government to accept 350 tonnes of waste for incineration, failing which contempt proceedings would be issued against them.
In December 2008, Dow admitted in its 2008 annual report that present and future liabilities associated with asbestos cases against Union Carbide are expected at $2.2 billion. It inherited the burden of the UCC'S liability on its books but it refused to admit the same with regard to the liability of UCC's Bhopal factory.
On January 19, 2009, Gujarat government filed a Special Leave Petition in Supreme Court appealing against High Court's order (CC 292/2009). The MP High Court's order was stayed. In April 2009, Bhopal Group for Information and Action and others intervened in the Supreme Court case and filed an affidavit asking that the waste be disposed off in a facility abroad as the sites in India are not ready or are inadequate to receive and dispose off the waste. On April 13, 2009, the Supreme Court heard the case. Gujarat government filed an affidavit raising legal and technical issues on the readiness of BEIL for incinerating the waste. On April 24, 2009, the Union government sought time to examine the matter. On July 20, 2009, at the eighteenth meeting, the task force agreed to set up an expert group under the chairperson CPCB to examine alternatives to the incinerator in Gujarat and to rank the alternatives in order of preference.
On October 28, 2009, at the nineteenth meeting, the task force discussed the report of the expert group set up to assess disposal facilities in the country; 5 TSDF sites are visited – Ankleshwar Gujarat, Dungigal in Hyderabad, Taloja Mumbai. The sites at Indore and Nagpur could not be cleared as the facilities were not ready. The Dingigul facility is 839 km from Bhopal and Taloja 779 km and transportation over long distances could pose problems. The expert group explored the option to incinerate the waste in cement kilns. The National Council for Cement and Building Materials conducted technical study of co-processing sludge of UCIL in cement plants and recommended blended sludge at rate of 2 per cent in kiln. The trial run was done in December 2009 and results were submitted to the task force in January 2010. Centre for Scienece and Environment (CSE) released its report showing contamination of the site in 2010.
On January 28, 2010, the task force recommendations were presented to the Supreme Court. The Supreme Court ordered incineration of 346MT of waste at TSDF facility in Pithampur, Madhya Pradesh after a successful trail run and the case was sent back to MP High Court for further monitoring.
Group of Ministers on Bhopal decides to set up an Oversight Committee under the chairman ship of Minister of Environment and Forests during 18-21 June 2010. It had members from Government of India and Madhya Pradesh. This committee replaced the Task Force committee to help in taking remedial action in dealing with the toxic waste. In June 2011, Union of India filed an affidavit in the MP High Court stating that 346 MT of waste can be sent for incineration at a secret DRDO facility in Nagpur. The MP High Court ordered that the MP government should take appropriate steps for transportation.
On February 22, 2012, in a meeting held at the Union Ministry of Environment and Forest with representatives of Maharashtra Pollution Control Board and MP Pollution Control Board it was decided that 346 MT will be sent for incineration at the TSDF facility in Pithampur, MP. On February 24, 2012, it submitted a proposal to MP government stating that it can transport and dispose off the 346 MT in a facility in Hamburg, Germany.
On April 4, 2012, Government of India filed an Special Leave Petition in the Supreme Court and got an order directing MP government to incinerate 346 MT of toxic waste at the TSDF facility in Pithampur, Madhya Pradesh.
On August 09, 2012, in paragraph 35 (12) of its judgement, Supreme Court recorded: "It is indisputable that huge toxic materials/waste is still lying in and around the factory of Union Carbide Corp. (I) Ltd. in Bhopal. Its very existence is hazardous to health. It needs to be disposed of at the earliest and in a scientific manner. Thus, we direct the Union of India and the State of Madhya Pradesh to take immediate steps for disposal of this toxic waste lying in and around the Union Carbide factory, Bhopal, on the recommendations of the Empowered Monitoring Committee, Advisory Committee and the NIREH within six months from today. The disposal should be strictly in a scientific manner which may cause no further damage to human health and environment in Bhopal. We direct a collective meeting of these organizations to be held along with the Secretary to the Government of India and the Chief Secretary of the State of Madhya Pradesh within one month from today to finalize the entire scheme of disposal of the toxic wastes. The above direction is without prejudice to the appropriate orders or directions being issued by the court of competent jurisdiction." NIREH stands for National Institute of Research in Environment Health.
The ultimate paragraph of Court's judgement reads: "The Registry is directed to transmit the records of the Writ Petition No. 50/1998 to the Madhya Pradesh High Court, Bench at Jabalpur, forthwith and also send copies of this order to all concerned quarters of the Union of India, the State of Madhya Pradesh, the Monitoring Committee, the Advisory Committee, ICMR, BMHRC and the NIREH for compliance of these directions without delay and default." ICMR stands for Indian Council of Medical Research and BMHRC stands for Bhopal Memorial Hospital and Research Centre.
On September 17, 2012, GIZ terminated its offer to dispose UCC's toxic waste (346MT) in a facility in Hamburg, Germany because of protest in Germany. On October 21, 2012, the Group of Ministers on Bhopal decided to incinerate 10 MT of waste similar to UCC waste at the TSDF facility in Pithampur, Indore. On January 23, 2013, CPCB was asked to conduct another trial run and submit its report to the Supreme Court. On March 4, 2013, 10MT of hazardous waste from Hindustan Insecticide Factory, Kerala was identified to be similar to UCC’s waste. Supreme Court directed that 10 MT of the waste be transported from Kerala to Bhopal and incinerated at Pithampur, Indore. On May 8, 2013, the Union of India was allowed ten weeks' further time to complete the entire process of trial incineration of 10 metric tonnes of UCC's waste at Pithampur TSDF. The government of MP was directed to ensure the safety and security of the employees associated with the facility and the officials of the Ministry of Environment and Forest and the CPCB.
On January 4, 2013, Supreme Court observed: "In this Court’s judgment in Writ Petition (C) No. 50 of 1998 etc. dated 9th August, 2012 in sub-para (12) of para 35, some directions were given with regard to the disposal of toxic materials/waste lying in and around the factory of Union Carbide Corporation Ltd., Bhopal. It has been brought to our notice by this interlocutory application that the Madhya Pradesh High Court has been monitoring the removal of the same toxic waste in Writ Petition No. 2802 of 2004 Alok Pratap Singh vs. U.O.I. And Ors. and against the orders passed by the Madhya Pradesh High Court, a Special Leave Petition No. 9874 of 2012 has been filed in this Court and a Bench of this Court is now monitoring the removal of the aforementioned toxic materials/waste. Obviously, the directions in sub-para (12) of para 35 in the judgment dated 9th August, 2012 may conflict with the orders that may be passed by the Bench hearing the Special Leave Petition No. 9874 of 2012. Hence, we delete the directions given in sub-para (12) of para 35 in the judgment dated 9th August, 2012. It will be open for the petitioner in Writ Petition (C) No. 50 of 1998 to intervene in the aforesaid Special Leave Petition (Civil) No. 9874 of 2012."
In 2013, the U.S. Court of Appeals for the Second Circuit in New York upheld U.S. District Court Judge John F. Keenan’s comprehensive decision of June 2012 in the Janki Bai Sahu et al. v. Union Carbide Corporation. Judge Keenan had concluded that UCC is not liable for any environmental remediation or pollution-related claims made by residents near the Bhopal plant site in India and ruled that UCC had no liability related to it.
In July 2014, Judge Keenan ruled that UCC was not liable for any on-ongoing pollution from the Bhopal chemical plant in Jagarnath Sahu et al. v. UCC and Warren Anderson which was filed in 2007 in New York District Court seeking damages to clean up six individual properties allegedly polluted by contaminants from the Bhopal plant and the remediation of property in 16 colonies adjoining the plant.
On December 2, 2014, The Atlantic reported that thousands of tons of hazardous waste remain buried underground, and the government has conceded the area is contaminated.
In 2015, a trial run was conducted to dispose of toxic waste from the UCC's plant in Bhopal. The trial incineration of 10 tonnes of UCC waste was carried out at the common hazardous waste treatment, storage and disposal facility (TSDF) in Pithampur in Indore during August 13-18, 2015, under the supervision of the CPCB, MPPCB and the Union Environment Ministry.
In May 2016, the U.S Court of Appeals for the Second Circuit in New York affirmed the lower court ruling in the matter of liability of UCC.
On August 15, 2016, the U.S Court of Appeals for the Second Circuit in New York rejected the petition for a rehearing after the lower court's decision stating that UCC was not liable for any plant site pollution effects arising out of the Bhopal tragedy.
In March 2017, the Union Minister of State of Environment assured that the Union government was committed to dispose hazardous materials from the factory site safely.
On March 30, 2017 a news report pointed out that huge hazardous waste is still lying at the defunct Union Carbide factory of Bhopal which poses continuous hazard to the environment and public health. A complaint was filed in the National Green Tribunal on the basis of the news report.
A case related to disposal of toxic waste tying the factory of UCC, which is now represented by Dow Chemical Company and regarding import of hazardous waste was listed for hearing on January 10, 2018 in the Supreme Court of India. Its fate is note known.
On July 28, 2018, Jabalpur Bench of the MP High Court ordered the MPPCB to not allow any movement of toxic waste from Bhopal's UCC site to the Defence Research and Development Organization (DRDO) incineration facility at Butibori near Nagpur. The movement was stayed till August 11, 2018. The court also directed the pollution control boards of both the states to inspect the defunct plant site in Bhopal. The court's order came while addressing an intervention appeal filed by the Maharashtra government against the MP High Court's order of July 12, 2028 that allowed the incineration of toxic waste of the Union Carbide plant in Nagpur. Maharashtra government had submitted that MP government had not sought a No Objection Certificate (NOC) from them. In the intervention appeal the Maharashtra government submitted that since there was a facility in Pithampur, near Indore, to treat such waste, the waste should be disposed off within the state itself.
On July 18, 2018, the Supreme Court reiterated its judgments dated July 6, 2012 and 13th October 13, 1997 and October 14, 2003. It reads: "The Central Government is also directed to bring the Hazardous Wastes (Management & Handling) Rules, 1989, in line with the Basel Convention and Articles 21, 47 and 48-A of the Constitution." It was seized with issues like Preparation of a National Inventory of Hazardous Wastes; Complete identification and registration of Hazardous wastes generating units in the country;Construction of TDF/Landfills;Hazardous Waste Dump Sites; Waste Oil/Used Oil read with the order dated 23.10.2007; Setting up of laboratories at the docks/ports; Workers handling hazardous wastes and National Policy Documents on Hazardous Wastes as well as cleaner technology. It transmitted these issues to National Green Tribunal (NGT).
On April 7, 2021, MP government floated a tender to incinerate 337 MT waste of UCC's factory. The 74 page long tender stated that out of 377 MT waste, 92 MT is sevin residue and Naphthol residues, 29 MT process/ rector residue, 54 MT Semi-processed pesticide and 162 MT excavated waste/contaminated soil kept on the warehouse in iron tanks and other packaging. The tender was for only 5% of over 1.7 lakh tonne toxic waste at UCC's factory.
On December 10, 2021, a complaint has been filed in the National Green Tribunal (NGT) on the basis of media report dated 30.03.2017 highlighting that huge hazardous waste is still lying at the defunct Union Carbide factory of Bhopal, posing continuous hazard to the environment and public health.
On December 22, 2021, by NGT's order a joint Committee of the CPCB, State PCB and the District Magistrate, Bhopal was formed to ascertain the factual position in the matter. The State PCB was made the nodal agency for coordination and compliance. The joint Committee was supposed to undertake site visit and submit factual and action taken report within two months. The report was submitted on February 22, 2022.
On March 9, 2022, the NGTs 12-page long final order was passed factoring the report dated February 25, 2022.
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