An organization representing thousands of victims of the 1984 Bhopal gas tragedy said it will immediately appeal a July 30 ruling that absolves the Union Carbide Corporation for ongoing contamination stemming from the now-shuttered chemical plant.

U.S. District Court Judge John Keenan in New York, who has ruled in favor of Union Carbide in three previous cases related to the Bhopal tragedy, summated that the plant in Bhopal, India, was built and owned and operated by an Indian subsidiary, UCIL; therefore Union Carbide cannot be sued to clean up the mess created 30 years ago when methyl isocynite gas leaked out of the factory, immediately killing 3,000 people and injuring thousands of others. Keenan also ruled that Union Carbide and the government of Madhya Pradesh are not responsible for stemming the ongoing contamination of groundwater.

International environmental organizations have claimed that aquifers as far as 3.5 kilometers away from the chemical plant are contaminated with toxic wastes.

At the time of the horrific disaster, the Union Carbide Corporation owned more than half of its subsidiary, UCIL. Dow Chemical bought the beleaguered company in 2001.

“We are surprised and disappointed, but we will continue to fight for justice for the people of Bhopal,” Marco Simons, legal director of EarthRights International, told India-West. He estimated that at least 100,000 people are still suffering in the aftermath of the world’s worst industrial disaster.

EarthRights International filed the suit. Simons said the organization will file an appeal within 30 days.

In its suit, EarthRights International contended that Union Carbide had provided the design of waste contamination pits necessary to store hydrochloric acid, a by-product of the methyl isocynite manufacturing process. Hydrochloric acid is the primary source of groundwater contamination emanating from the Bhopal factory.

But Keenan refuted the charge, saying Union Carbide had recommended using a non-swelling clay to line the contamination pits, through which water could not seep; instead, UCIL used thin polyurethane, which was significantly cheaper.

Keenan referred to a memo, stating: “UCIL will have the primary responsibility for designing and providing the facilities for disposal of wastes.” Portions of the memo were redacted in Keenan’s 45-page long ruling.

EarthRights International also contended that Union Carbide’s methyl isocynite process design was a substantial factor in creating the pollution. Keenan also threw this argument out, responding: “Plaintiffs cannot succeed in holding UCC liable for the overall manufacturing operations of UCIL upon a mere showing that UCC provided the MIC process technology.”

In the lawsuit, EarthRights International had asked to be able to depose Lucas John Couvaras, believed to be the onsite Union Carbide project manager, overseeing the Bhopal factory’s construction. If Couvaras is found to be a UCC employee, everything he did provides a basis for holding the corporation liable.

Simons told India-West Couvaras had already submitted a statement to the organization, saying he was employed by Union Carbide, not UCIL, at the time the plant was built.

But Keenan refuted that claim as well, saying Couvaras was listed as a UCIL employee for nine years in the subsidiary’s annual reports. He refused to let Couvaras be deposed saying: “Couvaras would be testifying based upon decades-old recollection, if deposed.”

Couvaras, who is now retired and lives in Houston, Texas, could not be reached for comment. But in a declaration, shown during the trial as Exhibit A, Couvaras stated: “I was a UCC employee assigned to UCIL from 1971 to 1981 to manage the engineering and construction of the plant based on UCC proprietary design.”

UCIL provided all the engineering and administrative staff, said Couvaras.

The design reports for the plant were prepared by Union Carbide’s technical center in Charleston, West Virginia. The reports were approved by various Union Carbide managers before being sent off to India, declared Couvaras.

However, the engineering and construction group in India was almost entirely UCIL staff, said Couvaras.

“If Couvaras were allowed to testify, it would be impossible for any judge to dismiss this case,” Simons told India-West. Couvaras, who worked for Union Carbide for most of his career, has taken the company line – that the gas leak was caused by internal employee sabotage – so could therefore not be seen as an objective witness in a trial, he said.

Couvaras’s testimony would be the key piece of evidence to determine UCC’s responsibility in the clean-up of the factory site, stated Simons.

In 2012, the victims of the Bhopal gas tragedy received a victory when the Indian government pledged to remove 350 metric tons of toxic waste from the factory site, at a cost to India of approximately $4.5 million. The work, to be performed by a German firm, was expected to be completed by the end of 2012.

But environmental activists say this does not address the problem of thousands of tons of toxic waste which have seeped into groundwater as far as three kilometers from the plant site.

Meanwhile, an Indian court has issued a summons to Dow Chemical to appear in court Nov. 12. The court had issued the summons to the corporation in April, but the company refused to accept the papers, which were sent by the Indian Embassy through the mail. Dow Chemicals contended that the summons should be served via the U.S. Justice Department and the State Department.

The Indian Embassy is now routing the summons through the proper U.S. channels.

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