Toxic legacy

Ratan Tata's offer to help find funds to remove the toxic waste in UCC's Bhopal plant is inconsistent with the `polluter pays' principle.

V.VENKATESAN in New Delhi

THE `polluter pays' principle, which is a basic part of environmental law, requires that polluters bear the remedial or clean-up costs of the damage they cause to the environment and the expenditure of compensating the victims of the pollution. In the case of the victims of the 1984 Bhopal gas disaster, the polluter, Union Carbide Corporation (UCC), may claim that it fulfilled the second part of this principle, that is, payment of compensation to the victims through the settlement with the Gove rnment of India, approved by the Supreme Court. But the question of fixing the liability for the remediation of the toxic waste left behind by its subsidiary Union Carbide India Ltd. (UCIL), which ran the abandoned pesticide plant in Bhopal, continues to be intractable.

Tata Group chairman Ratan Tata, according to a report carried in The Indian Express on January 1, has offered, in a letter to Planning Commission Deputy Chairman Msontek Singh Ahluwalia, to take the lead in finding the funds for remediation of the Bhopal site, above and below ground. Rata Tata has apparently made this offer to enable Dow Chemicals Co. - the company that inherited in 1999 UCC's assets and liabilities - to invest in India without getting bogged down in UCC's liabilities with regard to the clean-up. The Union Ministry of Chemicals & Fertilizers has urged the Madhya Pradesh High Court to direct Dow to deposit Rs.100 crores with the government for the remediation of the site. Dow is reluctant to invest in India or consider joint ventures with Indian companies until the government absolves the company of this liability. Survivors of the disaster, therefore, consider Ratan Tata's offer a mockery of the `polluter pays' principle.

Earlier, in his letter to Finance Minister P. Chidambaram on July 10, 2006, Ratan Tata, according to a press release issued by the Tata Group's spokesperson on January 17, made a similar suggestion. In the letter, Tata urged that remediation of the gas tragedy site be considered because of the likelihood of contamination of the soil and groundwater in the area, which would endanger the health and lives of the people of Bhopal. He suggested that one way forward might be to establish a fund for the remediation of the site. "Should the government and the courts endorse such a line of action, an effort could be made to bring [together] like-minded corporate houses to contribute to such a fund. These suggestions are totally independent of the issues being addressed in the courts," he noted in his letter. In June 2005, under orders from the Madhya Pradesh High Court in a petition filed under a public interest litigation (PIL), the Madhya Pradesh Pollution Control Board (MPPCB) initiated the process of removing the toxic waste from the plant site (Frontline, July 15, 2005). The effort was discontinued after the High Court constituted a task force to assess the magnitude of the problem. The task force set up a technical subcommittee (TSC) to suggest steps that could be taken to dispose of the waste that is lying above ground and that has been excavated from a number of sites within the UCIL factory grounds.

The TSC includes the Chairman of the MPPCB, P.D. Meena; Senior Scientist of the Central Pollution Control Board (CPCB), D.D. Basu; Director Grade Scientist of the National Environment Engineering Research Institute (NEERI), Tapan Chakrabarty; Deputy Director of the Indian Institute of Chemical Technology, A. Krishna Reddy; and Head of the Environment Management Division, Confederation of Indian Industry (CII), K.P. Nyati. The TSC has two co-opted members, in compliance with the High Court. They are the renowned scientists P.M. Bhargava of the Centre for Cellular and Molecular Biology, Hyderabad, and J.P. Gupta, Director-General, Gujarat Energy Research and Management Institute. The mandate of the TSC is to give clear recommendations for the safe removal and disposal of the stored toxic waste.

The TSC has so far met twice. In its first meeting, held at the CPCB, Delhi, on July 10, 2006, Bhargava suggested that the first option should be to apply the `polluter pays' principle, and hence Dow Chemicals Co. should undertake the disposal of the waste. Dow Chemicals Co., he said, must take responsibility for and bear the cost of its removal from UCIL, Bhopal, and its safe disposal in a suitable manner. He stated that the entire process and the treatments discussed by the TSC should be considered the second option. The TSC agreed to this suggestion and decided that it should be placed before the task force for consideration (according to the minutes of the TSC meeting accessed by Frontline).

In its second meeting, held on August 26, 2006, the TSC unanimously recommended that the government should ask Dow Chemicals Co. to take all the waste out of the country (in such a manner that no one is submitted to any health hazards and all legitimate environmental concerns are addressed) for disposal at their expense. This, the TSC felt, would be the only fair, ethical, proper, legal and desirable way of taking care of a problem, for the following reasons:

* This step would be compatible with the universally accepted principle that in such cases the responsibility for waste disposal must lie with those who generate the waste.

* When Dow acquired Union Carbide, it acquired all its assets and liabilities.

* Precedence exists where India has exported hazardous waste that could not be safely handled in the country. In March 2003, the Tamil Nadu Pollution Control Board ordered M/s Hindustan Lever Ltd. to export 286 tonnes of its mercury-contaminated waste to an overseas facility.

* In 1995, the European Commission procured 230 tonnes of off-specification fungicide from Rwanda.

* Nearly 300 tonnes of obsolete pesticides were repackaged and exported to Britain from Yemen with the assistance of the Food and Agriculture Organisation, the Netherlands and Germany.

If Dow does not agree to remove the waste and ship it overseas, the government should freeze the assets of Dow and all its subsidiaries and associated companies. In the event that Dow refuses to remove the waste, there may be no alternative but to go in for incineration. Incineration may then be carried out in such a way that the people concerned and civil society are satisfied and it is ensured, with total transparency and with participation of civil society, that all conceivable hazards to health have been adequately addressed.

Bhargava and Gupta will also need to access the data collected by NEERI (in the mid-1990s) with regard to the chemical waste in the factory site and give detailed comments on this matter in order to determine the best way of disposing of the waste.

In the PIL before the High Court, the Central government sought the court's direction to make Dow Chemicals deposit Rs.100 crores for environmental remediation and restoration. The High Court postponed consideration of this plea as in its view the removal of the waste rather than the fixing of responsibility should get priority because unless removed immediately the waste could cause another disaster. It is unclear how the Central government quantified the amount to be advanced by the polluter, as activists allege it is an underestimation. Apparently, however, the Central government's plea before the High Court is a major hurdle to be crossed by Dow before it accepts invitations for investments and collaborations in India. Dow is also evading criminal liability for the disaster before the Bhopal District Court and has secured a stay from the High Court on the notice issued to it by the District Court.

In view of the TSC's recommendation, the High Court may well introspect whether it was prudent to postpone the determination of Dow Chemicals' liability as a polluter. The determination at the earliest of the polluter's liability can help avoid what the TSC has described as the hazards of incineration in unregulated situations, as is the case in India. India, according to the TSC, has no prior experience in trying to use any alternatives to incineration either. More importantly, the determination of Dow's liability for the clean-up is imperative to restrict consideration by the government of mindless offers from Dow's friends in India to remediate Bhopal's waste on its behalf.

It is useful to recall what the Supreme Court said in Indian Council for Enviro-Legal Action vs. Union of India (The Bichhri Case, 1996): "The `polluter pays' principle, as interpreted by this Court, means that the absolute liability for harm to the environment extends not only to compensate the victims of pollution but also the cost of restoring the environmental degradation. Remedying the damaged environment is part of the process of `Sustainable Development' and as such the polluter is liable to pay the cost to the individual who suffers as well as the cost of reversing the damaged ecology." The Supreme Court's ruling in this case is binding on the Bhopal remediation case currently being heard by the Madhya Pradesh High Court.