The removal of toxic wastes from the former Union Carbide India Ltd. plant in Bhopal has begun, but apparently without adequate safety measures and without pinning down the polluters to their responsibility for environmental remediation.
V. VENKATESAN in BhopalEARLY in June, the Madhya Pradesh Pollution Control Board (MPPCB) initiated the process of removing toxic wastes from the former Union Carbide India Ltd. (UCIL) plant in Bhopal, which was the source of the massive leak of the lethal methyl isocyanate (MIC) gas that killed thousands of people on December 2-3, 1984. Removal of these wastes was a long-standing demand of environmentalists and local residents as these were gradually leaching into the groundwater aquifer beneath the plant and contaminating drinking water in at least 10 neighbourhoods surrounding the abandoned factory.
According to one estimate, hundreds of thousands of tonnes of extremely toxic wastes and hazardous chemicals have been buried in over 11 waste pits at the site. The landfill for the three solar evaporation ponds contains several thousand tonnes of wastes buried under the surface with just a thin plastic liner. Some of these toxic and carcinogenic chemicals have been found to be present in extremely high levels in samples taken from drinking water supplied to areas in the neighbourhood.
Considering the magnitude of the problem, the way these hazardous wastes were allowed to remain at the site all these years is appalling. The State government asked Eveready Industries India Limited, which purchased UCIL, to clean up the plant site and remove the source of contamination. It expressly and publicly refused to do so, claiming that the plant site was surrendered to the State authorities in 1998 and that it had no further responsibilities regarding the plant. Since then, both the Centre and the State government chose to ignore the problem, daunted by the complexity, magnitude and cost of the task.
Last year, both the governments woke up to the issue when the United States District Court for the Southern District of New York, in a civil suit for environmental damages filed by gas-affected persons from Bhopal, agreed to consider the claim for site remediation only if the Indian government agreed to cooperate.
The Union of India, accordingly, submitted a letter on June 28, 2004, to the U.S. District Court, stating that neither it nor the State government had any objection to any relief for environmental remediation of the plant premises in Bhopal being ordered or directed by a competent court or tribunal of the U.S.
In the letter, the Union of India further communicated its readiness to cooperate with any such relief measures as and when announced by the U.S. District Court. The relevant paragraph in that letter - which is contrary to the government's stand now - deserves to be reproduced in full:
"The Union of India will monitor and supervise such environmental remediation including decommissioning of plant and machinery, remediation/disposal of contaminated soil and appropriate disposal of toxic chemicals and wastes on the plant site by Union Carbide in order to ensure that it is undertaken in compliance with the norms and parameters laid down by a specific organisation of the Government of India, the Central Pollution Control Board, for that purpose. Union Carbide will also be held responsible for any loss/damages caused to life or property in the process of remediation and disposal. Pursuant to the "polluter pays" principle recognised by both the U.S. and India, Union Carbide should bear all of the financial burden and cost for the purpose of environmental clean-up and remediation. The Union of India and the State government of Madhya Pradesh shall not bear any financial burden for this purpose."
The officials of the Madhya Pradesh government and the Centre, apart from various other bodies, are now part of the Task Force set up in compliance with the orders of the High Court at Jabalpur for the removal of the toxic wastes from the plant. The court issued the orders in response to a public interest petition filed by Alok Pratap Singh, a former activist working among the gas victims who has since become a politician. He had alleged that the Centre was totally indifferent to environmental pollution at home and was ready to act only if an alien court in New York passed an order. In his petition, he sought the court's direction to hold Dow Chemical, the company that bought UCIL, responsible for causing environmental pollution and to assume, as the UCC's legal heir, the undischarged liabilities of Union Carbide for the continuing impact of the disaster. He also sought directions to the Union of India and the State government to ensure immediate clean-up of the plant site.
The Task Force, under the chairmanship of the Secretary, Department of Chemicals and Petrochemicals, decided that the MPPCB would be the project coordinator for phases I and II, dealing with the tasks up to the filling and covering of the secured landfill (SLF). The State government has indicated that it has plans to construct a treatment, storage and disposal facility (TSDF) for the management of industrial wastes at Indore, with capabilities to handle wastes more toxic than those lying at the UCIL plant.
The remaining phases, identified by the Task Force, include removal of contaminated soil and remediation of ground/sub-soil water, and the dismantling and decommissioning of the plant. As part of the first phase, the MPPCB, which employed a private waste management company, Ramky Pharma City (India) Ltd., collected all the wastes lying scattered at the premises, packed and stacked them in a secure shed, as the court wanted it to complete the task before the onset of the monsoon.
As the Task Force goes ahead with its plan, two issues of concern have come to the fore. One is the apparent change in the Centre's position with regard to the `polluter pays' principle, which says that whoever is responsible for damage to the environment should bear the costs associated with it. The Union of India, for the record, has not said it disagrees with this principle. It cannot afford to. On the other hand, it has, before the High Court, discovered a "legal" duty to remove the toxic waste at the abandoned site. It has distinguished the matter of financial liability from that of executive responsibility for the removal of the toxic wastes.
The Union of India, in its affidavit filed in the court, defended its stand citing Rule 16 of the Hazardous Waste (Management & Handling) Rules, 1989, enacted under the Environment Protection Act, 1986. This rule lays down that the financial liability of remediation and restoration is that of the polluter and that an amount equal to the cost estimated by the State Pollution Control Board should be paid in advance to it by the polluter. The Union of India further stated that since the court was also to decide who was the polluter and from whom the cost of remediation was to be recovered as mandated by Rule 16, the court may direct the Dow Chemical Company, Union Carbide Corporation and so on, to deposit an amount of Rs.100 crores in advance. This could be adjusted in accordance with the final orders of the court, it said.
The impracticability of the suggestion is apparent. It is clear that the Centre has no means of forcing the Dow Chemical Company or UCC to pay such an advance towards the cost of remediation. Rule 16 (2) is clear that only after such an advance is paid by the polluter, the Board or Committee shall plan or execute the programme for remediation or restoration. For any violation of this provision, the polluter is liable to pay a fine as levied by the State Pollution Control Board with the approval of the Central Pollution Control Board, as per Rule 16 (3). But the Centre has displayed an inexplicable optimism about the willingness of the polluter to pay, in the way it has gone ahead with the Task Force and approved the MPPCB's action plan for phase I, even before it had any indication that the polluter was willing to pay the advance.
Greenpeace, the international non-governmental organisation in the field of environmental activism, estimated the clean-up cost in 2004 to be Rs.115-135 crores. It also warned that the cost could increase on further evaluation of the site and when factors such as the amount of soil, wastes and groundwater to be treated, the time needed for groundwater remediation and the technologies to be adopted were considered. An international team of experts that met under its auspices last year in Bhopal, felt that the clean-up of soil and wastes would take about four years, while that of the groundwater would take many years owing to the difficult hydro-geological situation and the behaviour of the contaminants underground.
The distinction between the executive and financial aspects of remediation - as made by the Centre - would not address another serious issue, namely, accountability for the loss, damage or risk to life and property caused to the people during the process of remediation.
In its communication to the U.S. District Court last year, the Union of India clearly stated that the UCC - as the polluter undertaking the task of remediation - would be liable for any such risk. Now, in its new garb of executor of remediation, will the Centre agree to be liable for any such risk?
Already there are genuine apprehensions about the safety of the clean-up exercise being pursued by the MPPCB. On May 31, when the Task Force met in New Delhi, it was brought to the notice of the MPPCB that a representative of the International Campaign for Justice in Bhopal had complained that some labourers had been sent inside the factory for clean-up work without protective clothing.
During the clean-up operations at the site in June, the MPPCB refused to let representatives of activists and survivors' organisations observe the work to satisfy themselves that standard procedures were followed. The absence of transparency in the exercise disappointed even the agency employed to collect and stack the waste. Dr. K.S.M. Rao, managing director of Ramky Pharma City Ltd., felt that the activists could have been allowed to observe the work, but the MPPCB felt they would disrupt it by raising baseless objections. Another fear of the authorities was that it would expose more people - who would not be provided with protective masks and clothing - to the hazardous chemicals.
However, the authorities permitted the petitioner and mediapersons to visit the site and observe the operations even though they had no protective gear.
But this correspondent, during a visit to the site, and on the basis of a conversation with Dr. Rao, found that there were certain aberrations. First, Dr. Rao conceded that it was difficult to make the "specially trained" workers compulsorily wear the protective clothes and breathe-in masks, because of the excruciating summer heat. Five to 12 workers of the company were at work at the site. Secondly, on two days of the clean-up work, dust emanated from the factory site and spread to the surrounding areas. Dr. Rao attributed this to an unexpected cross wind and open shutters which allowed the dust to escape.
Activist organisations alleged that as a result of the escaping chemical dust from the factory on June 17, as many as 36 people, including children, were affected seriously. Noorjehan, 35, from New Arif Nagar, had to be admitted to the Jawaharlal Nehru Hospital for acute respiratory distress, a press release issued by them on June 17 said. Thirdly, there was no evidence of any monitoring equipment stationed in the residential areas to detect pollution due to the pre-remediation work.
'Dr. Rao admitted that monitoring was important, but he deemed it the responsibility of the MPPCB. MPPCB Chairman P.S. Dubey was not available for comment.
The High Court's concern for ensuring early clean-up of the contaminated site is understandable; but in the process of doing so, should the judiciary and the State let the polluter evade responsibility and compromise on safety standards, exposing the surrounding population to great risks?
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