Dow: The Criminal Case

The Criminal Cases

Bhopal is not only a disaster; it is also a corporate crime. The criminal cases focus on the manslaughter charges against Union Carbide and CEO Warren Anderson. Like the civil cases, the criminal cases are complicated by the need for cooperation between countries, which has not been forthcoming. Nonetheless, the cases press on; in November 2008 one of the civil suits was reopened in the US, and in July 2009 the Chief Judicial Magistrate’s (CJM) Court at Bhopal issued another warrant for Anderson.

Responsibility

It began as a classic example of corporate double standards. Carbide had built a state of the art facility in Institute, West Virginia (WV), and it was supposed to have duplicated that plant in Bhopal. Instead, it used inferior, unproven technology. Additionally, it employed lax operating procedures, maintenance and safety standards. The motive was both profit - the company saved $8 million - and control; Carbide was able to retain a majority share of subsidiary Union Carbide India Limited (UCIL).

Carbide's Safety Meltdown:

NONE of the safety systems designed to prevent a leak were operational on the night of 2/3 December 1984:
*) Flare Tower: disconnected
*) Vent Gas Scrubber: shut off for maintenance
*) Water Curtain: not functional; designed with inadequate height
*) Pressure Valve: temperature and pressure gauges were malfunctioning
*) Run Off Tank: already contained MIC
*) Mandatory Refrigeration for MIC Unit: Shut down for 3 months to save money
*) Alarm system - no effective systems in place

Ownership issues:

UCIL was majority owned by the US Corporation (50.9%). This meant that
*) even relatively minor decisions were made in consultation with US management.
*) Carbide provided all process designs in Bhopal, including flow diagrams, material and energy balances, operating manuals.
*) Carbide provided information necessary for the construction, start up and operation of the plant. (no India-based firm had any experience of MIC/Sevin production.)
*) the technology exchange from the US to India was formalized in a technical services agreement.
*) UCIL paid for continual know-how and safety audits.
*) Carbide set up a "design review process" - ongoing review of design by US engineers (internal Carbide documents)

The warning signs

Dec. 25, 1981- a leak of phosgene killed worker Ashraf Khan, and severely injured two others.
Jan. 9, 1982 - 25 workers were hospitalized as a result of another leak at the plant.
May 1982 - During a "safety week" to address worker grievances, repeated incidents of toxic leakage happened. Workers complained directly to the American officials present. Workers’ requests for hazardous-duty pay were denied.
May 1982 - Carbide sent a team of US experts to inspect the Bhopal plant as part of its routine safety audits. The resulting Tyson report, which was sent to Carbide's US management, notes:
* leaking valves
* "potential for the release of toxic materials"
* 61 hazards, 30 of which were major, 11 were in the MIC/phosgene units.
Carbide’s response:
* Nothing was done to address the report’s suggestions.
* Increase in cost cutting.
* Reduced staff at the Bhopal plant by 335 men (the company had already decided to close the plant; nonetheless Carbide saved $1.25 million that year.)
Oct. 5, 1982 - Another leak requiring hospitalization of hundreds of residents in the surrounding communities.
1982-1984 - Local journalist, Rajkumar Keswani, warned of the dangers in series of four published articles.

Avoiding Responsibility: Sabotage?

Immediately after the disaster, Union Carbide launched an aggressive effort to shift blame. They paid for the only study ever to conclude that sabotage by the deliberate introduction of water into the MIC tank by one or more disgruntled workers was the cause. Because the study had no scientific base, it has never been used as evidence in a court of law, yet Dow /Carbide continues to cite it shamelessly.
Carbide itself has cast doubt on the sabotage theory. In 1985:
* Warren Anderson stated that there was "no evidence whatsoever that sabotage was behind the incident at Bhopal"
* Jackson Browning, Carbide’s VP for Health, Safety and Environmental Affairs, testified that because of the design, a deliberate introduction of water into the MIC tank was virtually impossible.

Carbide claims it knows the identity of the "saboteur", yet has never publicly named him. To do so would invite a libel suit during which the facts of the disaster and the sabotage theory would be open to scrutiny.

The Case Against Carbide

In the wake of the disaster, the Central Bureau of Investigation (CBI - equivalent of the FBI) charged Anderson, other top executives, and the Corporation itself with culpable homicide (manslaughter) and other serious offenses.

Possible penalty:

If Dow/Carbide is found guilty, it could be sentenced to pay a fine without an upper limit. Such penalties are decided based upon the magnitude of the crime (the world's worst industrial disaster), the stature and ability of the accused party to pay (the world's second largest chemical corporation), and the current state of the victims.

Dow/Carbide Response:

*) failed to appear for trial despite assurances from Carbide representatives. This includes ignoring a summons published in the Washington Post (Feb. 21, 1992).
*) stated it has no intention of surrendering its [Dow’s] subsidiary [Carbide] for trial.
*) stated that they were not subject to the Indian government and would therefore not appear in court.
*) [Dow] has placed itself in the legal position of harboring a fugitive by refusing to surrender its subsidiary for trial.
Company assets can be seized to compel an appearance in court; in 2005 the CJM’s court in Bopal sent a summons to Dow asking them to show why their Indian assets should not be seized to compel Carbide’s appearance for trial.

The Government of India officially considers Carbide an absconder - fugitive from justice.

The Case Against CEO Warren Anderson

The case against Anderson is similar to that against the company itself, but more personal.

Responsibility:

Anderson
* exercised managerial control and supervision over the operations of UCIL.
* was reported to by his main intermediary for Bhopal, an Executive VP of Carbide.
* approved and ratified the inferior standards in design, safety and operations at UCIL compared to the West Virginia plant.
* created inherently dangerous conditions at the Bhopal factory.
* was personally involved in the economy drive that aimed to salvage the Bhopal plant's financial viability.
* knew or should have known by 1982 about the problematic safety conditions in the Bhopal plant (Tyson Report).
* failed to take remedial action suggested by the Tyson Report.
* was informed, or should have been, about Ashraf Khan’s death in1982 from a gas leak at the Bhopal plant.

Timeline:
May 1982 - US Carbide inspection team indicated that the Bhopal plant was unsafe. (See "The Warning Signs" on this page.)
Sep 1984 - Even the state-of-the-art WV plant was a potential problem - a warning indicated that a "runaway reaction that could cause a catastrophic failure of the storage tanks holding the poisonous [MIC] gas" (internal Carbide memo).
Dec. 1984 - Anderson flew to Bhopal; he
* was placed under house arrest
* was charged with
o culpable homicide (manslaughter)
o causing grievous hurt
o causing death and poisoning of animals
* was released on bond the same day and allowed to leave India
* promised to return to face any criminal proceedings.
Over the years Anderson
* never returned to India.
* was declared an absconder after ignoring multiple summonses to appear for trial, including one published in the Washington Post (January 1st, 1992)
* was issued an arrest warrant by the Indian Government circulated through Interpol.
* went into hiding.
* was discovered living a life of luxury in the Hamptons, an exclusive area near New York City (2002)
May 2003 - The Indian Government requested his extradition.
July 2004 - The US Government rejected the request.
July 2009 - CJM’s Court at Bhopal ordered the CBI to arrest Warren Anderson and produce him before the court without delay. It also asked CBI what measures it has taken to enforce the 2002 warrant and extradition order.

Possible Penalty:

If extradited and convicted of the deaths of 20,000 Bhopalis, Anderson faces punishment of up to life imprisonment.