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When Mrs. d and I bought our first house in the late seventies, a run down farmhouse out in the country about a mile east of town, it seemed as if we had scarcely signed on the dotted line when it was announced that a major multi-national corporation would be building an agricultural chemical plant in our little town.  The location for the new facility, it turned out, would be barely a half-mile northwest of our humble abode.

Living downwind of a chemical plant was not something we relished.  We liked our old Victorian-style farmhouse and had sunk a lot of sweat into making the ramshackle domicile livable again after years of neglect.  We had little inclination to move, but even if we had, an unprecedented collapse in housing prices in the early eighties put us -- in terminology coined for the occasion -- "underwater" on our mortgage and effectively stuck there, chemical plant or no chemical plant.  Undesirable though that may have been, it also happened that something else occurred not long after that would ultimately make our situation, though certainly not ideal, at least a little safer than it had been.

It must have seemed like a good idea at the time.  By the nineteen-sixties, Union Carbide Corporation was looking for new markets into which to expand.  The government of the second most populous nation on the planet was committed to improving the productivity of its farm land to achieve self-sufficiency in food production, and insecticides like Union Carbide's Sevin brand of carbaryl looked to play a vital role in that transformation and bring to India the kind of "green revolution" experienced in the United States over the previous two decades.

Rather than import the product from US production facilities, Union Carbide partnered with the Indian government and Indian investors to create Union Carbide India, Ltd., with Union Carbide holding the majority stake, and in 1969, opened a plant to produce carbaryl near Bhopal, the capital of the state of Madhya Pradesh.

From here on out, virtually nothing I can or will say about the Bhopal disaster is without dispute by one party or another.  What follows is the subject of bitter and contentious disagreements that have festered for nearly thirty years.  I do not have the time, the expertise, nor the inclination to try to present a carefully balanced analysis of the events that transpired.  Ultimately, my focus is the impact those events had on regulation in the United States.  I urge readers to consult the volumes of documentation and commentary that have been written on this incident and decide the disputed issues for themselves.
Despite the Indian government's commitment to revolutionizing its agricultural production, one faction in the equation never fully got on board the chemical-farming train.  Too many of the impoverished subsistence farmers of India lacked the financial resources to buy into the chemical program and the plant's sales never achieved the bonanza the company and its investors hoped for.  To make its product more competitive, the company expanded its operation to produce, rather than import from the US corporate parent, more of the component compounds used in the product's manufacture.  Principal among these was methyl isocyanate (MIC).
The specific site within the city was zoned for light industrial and commercial use, not for hazardous industry. The plant was initially approved only for formulation of pesticides from component chemicals, such as MIC imported from the parent company, in relatively small quantities. However, pressure from competition in the chemical industry led UCIL to implement "backward integration" – the manufacture of raw materials and intermediate products for formulation of the final product within one facility. This was inherently a more sophisticated and hazardous process
Edward Broughton, "The Bhopal disaster and its aftermath: a review", National Center for Biotechnology Information, U.S. National Library of Medicine, National Institutes of Health.

By the time the MIC production facility went into operation, however, the company encountered more setbacks.  A multi-year drought and famine that hit the subcontinent devastated the Indian farming industry.  Money the farming population had available for pesticides dwindled and by 1984 the company found itself operating at only a quarter of its capacity.  Prospects for a quick turn-around appeared grim.  In this atmosphere, Union Carbide India elected to cease production and began planning to dismantle the facility and move it to another, more prosperous third-world country.  At the time production shut down,  one of the three large MIC tank was filled beyond capacity and a reserve tank intended to hold excess MIC was also partially full.

With the plant shut down, staffing was cut to a skeleton crew to maintain the facility and monitor the chemicals in storage.  With the closure, any hope of promotion and career advancement evaporated, and skilled employees began to leave for other opportunities.  

By 1984, only six of the original twelve operators were still working with MIC and the number of supervisory personnel was also cut in half. No maintenance supervisor was placed on the night shift and instrument readings were taken every two hours, rather than the previous and required one-hour readings. Workers made complaints about the cuts through their union but were ignored. One employee was fired after going on a 15-day hunger strike. 70% of the plant's employees were fined before the disaster for refusing to deviate from the proper safety regulations under pressure from management.
Wikipedia: Bhopal Disaster

The plant exhibited a number of what would have been considered deficiencies in the United States.  There was only a single, manual back-up system in Bhopal, compared to four at the Union Carbide MIC facility in the US.  The flare tower designed to burn off excess gases proved to be inadequately designed, and a water spray system intended to neutralize escaping gases lacked sufficient pressure to reach the top of the stack and reduce the concentration of escaping gas.  Carbon steel valves had been used in the system, despite their susceptibility to corrosion, and a mechanism intended to prevent accidental release of water into the MIC tanks had not been installed due to an omission in the manual.

Image: bhopal.org (click on image).
As the plant's profitability slipped, the company's cost-cutting had resulted in reductions in a number of safety factors.  The MIC tanks were normally cooled to 4.5 degrees Celsius, but in order to save money, the refrigeration system had been shut down and the liquid in the tanks was maintained at 20 C.  Alarms on the MIC tanks to warn of overheating had not worked in four years and had not been replaced.  The flare tower and several gas scrubbers intended to treat vented gas with sodium hydroxide in the event of a release had been out of service for five months.  Only one scrubber was operational.  Other safety systems were out of operation for one reason or another.  In the absence of routine maintenance, the highly corrosive gas had attacked valves, gauges, and other elements of the system.

Just before midnight on the night of December 2, 1984, after employees used water to try to blast open a clogged pipe about 400 feet from the MIC tank, the accident waiting to happen, happened.  Because the gauges used to monitor the tanks had become so unreliable, employees dismissed the readings they were getting until it was too late.

...[A] dangerous chemical reaction  occurred in the Union Carbide factory when a large amount of water got into the MIC storage tank # 610.  The leak was first detected by workers about 11:30p.m. when their eyes began to tear and burn.  They informed their supervisor who failed to take action until it was too late.  In that time, a large amount, about 40 tons of Methyl Isocyanate (MIC), poured out of the tank for nearly two hours and escaped into the air, spreading within eight kilometers downwind, over the city of nearly 900,000.
American University: TED (Trade Environment Database) Case Studies: Bhopal Disaster

The water was introduced into the tank by either -- as claimed by the Indian government's report -- a malfunction or deficiency in the system design (which investigators were unable to duplicate), or -- as the company claimed -- as a result of deliberate sabotage by a disgruntled employee (of which investigators found no evidence).  The introduction of the water into the MIC triggered an exothermic reaction that quickly raised the temperature in the tank to over 200 degrees Celsius (nearly 400 F).  The lone scrubber still operational could handle releases of only a quarter of the pressure built up in the tank.  The tank vented under the increased pressure and the gas poured out into the atmosphere.  The rate of gas released was four times the capacity of the flare tower.

Exactly what was in the gas that spewed from the tank is a matter of conjecture.  The exact composition will never be known, and the company refused to reveal the exact contents of the emission, but the chemical's name, methyl isocyanate, offers a clue that it was not likely to be benign.  Depending on the conditions under which the gas was created and reacted in the overheated tank and the atmosphere, it likely contained some combination of phosgene, hydrogen cyanide, carbon monoxide, hydrogen chloride, oxides of nitrogen, monomethyl amine (MMA), carbon dioxide, and possibly others.  Heavier than air, the cloud hugged the ground and spread out from the source into the city.

The area immediately around the plant was the site of a large shantytown of desperately poor inhabitants, most of them asleep by the time of the accident.  Even the question of whether the shantytown grew up around the plant after it was built or was already there when the site was selected is disputed.  Regardless, the residents received no warning of the accident; the alarms that should have alerted residents of an emergency had been switched off.  The company had never disclosed to local officials what chemicals were used at the plant, and the officials had never been offered any training on emergency response to an accident at the facility.  Training of the plant employees on how to handle such an accident had been lacking, and its emergency response plan was inadequate.  There was no evacuation plan for the general public.  And now, in the early morning hours of December 3, a cloud of deadly gas descended upon them.

The effect on the people living in the shanty settlements just over the fence was immediate and devastating. Many died in their beds, others staggered from their homes, blinded and choking, to die in the street.

Many more died later after reaching hospitals and emergency aid centers. The early acute effects were vomiting and burning sensations in the eyes, nose and throat, and most deaths have been attributed to respiratory failure. For some, the toxic gas caused such massive internal secretions that their lungs became clogged with fluids, while for others, spasmodic constriction of the bronchial tubes led to suffocation. It is been estimated that at least 3000 people died as a result of this accident, while figures for the number of people injured currently range from 200,000 to 600,000, with an estimated 500,000 typically quoted.  
Corrosion Doctors: Bhopal Accident
[All figures disputed -- ds]

In the aftermath of the tragedy, Union Carbide flew officials and teams of doctors to Bhopal  (where CEO Warren Anderson was arrested on charges of "culpable homicide", but later released).  A later internal report quoted the doctors' opinion that survivors exhibiting respiratory symptoms would make a full recovery.  Those projections would prove to be dreadfully off-base.

Bhopal labored to deal with the sheer volume of its dead -- many were buried in mass graves as gravediggers worked around the clock to try to cope with the volume of burials.  There were mass cremations and many bodies were disposed of in the Narmada river.  With the enormity of the crisis, and some minority religions in the region requiring burial before sundown, there was no hope of an accurate accounting of the death toll.  It, along with virtually everything else about the disaster, would become the subject of bitter disagreements that persist to this day.

Photo: Indiatimes.com.

As the dead of Bhopal were buried and more continued to succumb over the subsequent days, weeks, months, and years, attention in the United States turned to the question, Could it happen here?  The answer would prove disturbing.  In hearings in the House of Representatives ten days after the deadly gas leak, then-five-term congressman, Henry Waxman of California, summed up the public skepticism about the industry:

We're being told on the one hand that it's a sealed system.  But on the other, all these chemicals are leaking into the air on a routine basis.  I find that troubling.  The federal government doesn't know anything about it and that's outrageous enough.  The state government hasn't the ability to regulate.  We rely on you to regulate yourself.  And if you are regulating yourself, it doesn't seem to me that your own people know why these chemicals are going into the air and what effect they're having on the public.
Kim Fortun, Advocacy after Bhopal: environmentalism, disaster, new global orders

It was later revealed that in the previous five years, Union Carbide had experienced 190 leaks of methyl isocyanate at its Institute, West Virginia facility, where Waxman's committee subsequently held inspections and hearings.  Most had been less than a pound, according to the company, and had not been required to be reported, but the hearings also revealed that there were no standards for MIC spills because, according to Waxman, "EPA hasn't set any."  The EPA, despite over a decade of regulatory authority, regulated only eight atmospheric pollutants.  The EPA, according to Waxman, didn't consider something a hazard until it was ready to regulate, and didn't regulate something until it considered it a hazard.  "EPA has been chasing its tail for too long," Waxman complained.  The committee began to prepare legislation to address inadequacies on both the industry and the government side.

Hank Karawan, then plant manager for Union Carbide's West Virginia facility insisted the methyl isocyanate plant was safe and posed no risk of a Bhopal-scale tragedy.   Nonetheless,

Despite Mr. Karawan's vote of confidence for the safety of the MIC operations at his plant, Union Carbide elected to shut down production of the deadly chemical until it could make $500 million worth of safety improvements. On May 4, 1985, Union Carbide resumed production of MIC. On August 11, 1985, on the heels of the completion of the safety improvement program just a few months before, 500 gallons of highly toxic aldchiloxin (phonetic) and MIC leaked from the Institute plant. Although no one was killed, 134 people living around the plant were treated at local hospitals.
Wikipedia: Emergency Planning and Community Right-to-Know Act

Despite the rather alarming evidence of a high degree of risk if the industry continued to operate as it had, the legislation that came out of the hearings in April of 1985, introduced by Democrat James Jones of Oklahoma, ran into stiff opposition from pro-industry opponents in Congress and a rabidly pro-business administration in the White House.  As the legislation wended its way through the House, Senate, and conference committee, a coalition of Republicans and conservative Democrats succeeded in stripping most of the meat from the bill.  In the end, the bill signed into law by President Ronald Reagan in October, 1986 had lost most of its teeth and did little but require disclosure and transparency, with little in the way of restricting or compelling industry behavior.

[The Emergency Planning and Community Right-to-Know Act] does not place limits on which chemicals can be stored, used, released, disposed, or transferred at a facility. It only requires a facility to document, notify, and report information. Each section of the law, however, applies different requirements, has different deadlines and covers a different group of chemicals.
Wikipedia: Emergency Planning and Community Right-to-Know Act

Despite the shortcomings, parts of the  EPCRA proved remarkably effective in some respects.  The bill required industry to inform local officials and emergency responders of the types of chemicals produced or stored at a facility and their characteristics and dangers; required federal, state, and local agencies to have emergency response plans in place based on the local threats from accidental spills and gas releases; required industries to report immediately any accidental emissions or spills; and required facilities to produce an annual report  of chemicals emitted into the air.  It also specifically acknowledged a state's right to implement more stringent measures than required by the federal law.

For each district, the SERC appoints, supervises and coordinates the activities of a Local Emergency Planning Committee (LEPC). The LEPC must, in turn, develop an emergency response plan for its district and review it annually. The membership of the LEPC includes representatives of public and private organizations as well as a representative from every facility subject to EPCRA emergency planning requirements.

The plan developed by the LEPC must:

  • identify affected facilities and transportation routes;
  • describe emergency notification and response procedures;
  • designate community and facility emergency coordinators;
  • describe methods to determine the occurrence and extent of a release;
  • identify available response equipment and personnel;
  • outline evacuation plans;
  • describe training and practice programs and schedules; and
  • contain methods and schedules for exercising the plan.

[...]
If the amount of a chemical released to the environment exceeds the reportable quantity, the facility must immediately report the release to the appropriate LEPC and SERC and provide a written follow-up as soon as practicable. Immediate notification must include the following:
  • The name of the chemical;
  • The location of the release;
  • Whether the chemical is on the "extremely hazardous" list;
  • How much of the substance has been released;
  • The time and duration of the incident;
  • Whether the chemical was released into the air, water, or soil, or some combination of the three;
  • Known or anticipated health risks and necessary medical attention;
  • Proper precautions, such as evacuation; and
  • A contact person at the facility.
 
Wikipedia: Emergency Planning and Community Right-to-Know Act

Perhaps the most effective pillar of the  Emergency Planning and Community Right-to-Know Act proved to be an extension of the act's reporting requirements called the Toxics Release Inventory (TRI).  The TRI established a database available to the public listing all releases reported under the act (which  became, as the computer age evolved, a searchable internet database) where the public could see what chemicals were being released in their areas, and compare them to other localities.  What the data would reveal contributed a sense of outrage and activism among the public that led to an outcry for stricter regulation of the industries producing, transporting, and storing dangerous chemicals.  That fundamental evolution of public attitude would help lead, just a few years later, to the passage of Clean Air Act Amendments of 1990, one of the most significant strengthenings of the original Clean Air Act of 1963.  But that's a story for another day.

Twenty-seven years later, the tragedy at Bhopal stands as likely the world's worst industrial accident.  The current death toll from Bhopal is hotly disputed.  Estimates range from around 2,000 mostly immediate deaths to a long-term toll of more than 25,000.  Union Carbide, now a subsidiary of Dow Chemical, accused Indian authorities of inflating estimates of the death toll, and classifying any death over the years due to cancer, respiratory diseases, or a multitude of other causes as related to the accident.  The Economist wrote in 2010:

Officials put the number of deaths caused by the leak at fewer than 4,000, but others estimate that around 25,000 eventually died. Many were killed immediately; countless others died after long and dreadful illnesses.

The ministers’ recommendations are unlikely to do much to soothe Bhopal’s angry people. Today as many as 100,000 are thought to suffer from chronic sicknesses, such as cancer or neurological disorders. And more will probably follow. A study by the Centre for Science and Environment, an Indian NGO, last year found that even 3km (2 miles) from the factory, groundwater contained levels of toxic chemicals 40 times higher than the national limit.
The Economist, "The slow pursuit of justice"

Other sources allege as many as half a million people today suffer ill health effects as a result of the accident and exposure to lingering contaminants from the now-closed facility.  Throughout, Union Carbide has sought to downplay its responsibility, noting that UCIL was partly owned by the Indian government and Indian investors and accusing them of trying to shift culpability to their US partner.  Union Carbide initially offered $350 million in compensation; the government of India demanded $3.5 billion.  Ultimately, an agreement was reached that was far closer to Union Carbide's initial offer, amounting to as little as $500 to $2,000 per victim, depending on the estimate used.

In 1989, Union Carbide and UCIL entered into a $470 million legal settlement with the Indian Government, settling all claims arising from the incident. The Indian Supreme Court affirmed the settlement and described it as "just, equitable and reasonable." Union Carbide and UCIL promptly paid the money to the Government of India. A lawsuit filed in U.S. District Court in 1999 asserting claims for personal injuries and property damage arising out the Bhopal gas disaster was dismissed, and all subsequent appeals in the case have upheld the dismissal. A few other cases, filed in New York Federal court in November 2004, and thereafter, have focused on site remediation and compensation for residents. These cases have largely been rejected by the court, although a decision in one such case is still pending. Appeals and motions made by the plaintiffs in this case in 2009 and 2010 have been rejected by the court.
Bhopal.com (Union Carbide site):Frequently Asked Questions regarding the Bhopal Tragedy of 1984

Warren Anderson was released by Indian authorities and left the country immediately.  Since then, the US government has refused India's demands for extradition to stand trial in Indian courts.  An arrest warrant was issued and he remains a wanted man outside US borders.

US courts have consistently ruled that Indian claimants have no recourse to seek compensation through the US court system.  Last year, Indian courts convicted seven executives and managers of UCIL -- Indian citizens -- in connection with the disaster.  They were sentenced to two years in prison.  They are, to date, the only individuals convicted of wrongdoing in connection with the Bhopal disaster.

In Bhopal, people -- many desperately poor -- continue to suffer and die.  Whether this is a result of the Union Carbide accident, like everything else connected with this incident, is bitterly disputed.

The Bhopal Medical Appreal
Students for Bhopal
International Campaign for Justice in Bhopal
Greenpeace: Give a gift to Bhopal and a message to Dow Chemical
India Together - Justice for Bhopal
(Inclusion in this list should not be considered as endorsement.)

In the years following Bhopal, that chemical plant upwind of our little home held training classes for area emergency responders, hosted functions to educate local officials on the chemicals being produced at the plant, and helped develop emergency response plans.  As required by law.  Ever so often, until we moved in 1991, we would see one of their trucks cruising up and down our road, stopping periodically as an employee hopped out to take a soil sample.  And while it could fill one with some trepidation, there was also in it some small sense of reassurance that something was being done.  Because we made them do it.


And that, dear Kossacks, is where regulation comes from -- not from bored bureaucrats sitting in an office in Washington trying to think up ways to make life miserable and expensive for some innocent and unsuspecting businessman, but from real tragedy and human suffering brought about, all too often, by people who shirk what should be obvious responsibilities, who neglect basic diligence, who sacrifice safety for profit.  They bring suffering on those who trust them, and society adopts measures to make sure it never happens again.  We have to force them, through regulation, to behave as they should have been behaving all along.  That's how regulation came to be.


You can submit online public comments on proposed rules and regulations at Regulations.gov
(h/t  to stusviews)


Previous installments of How Regulation came to be:
1938 Food, Drug, and Cosmetic Act
The Iroquois Theater Fire
Radium Girls - Part I
Radium Girls - Part II
Radium Girls - Part III
Construction Summer
Red Moon Rising
The Cherry Mine Disaster, Part I
The Cherry Mine Disaster, Part II
Ground Fault, Interrupted
The Cocoanut Grove
DK GreenRoots: Donora
Confined Spaces
The Hotel Fires of 1946 - Part I
The Hotel Fires of 1946 - Part II
Our Lady of the Angels
The Great Molasses Flood
Toy Safety
The Power of One: Frances Oldham Kelsey
Santa Barbara
The Scofield Mine Explosion
The Triangle Shirtwaist Fire (reposted 24 March 2011)
The Cincinnati Who concert tragedy
The Flexner Report
The Eastland Disaster
El Cortito -- the short hoe
The Buffalo Creek Act of God
The Rehabilitation Act of 1973
The Memphis Yellow Fever Epidemic - Part I
The Memphis Yellow Fever Epidemic - Part II
The Tylenol Killings
The Hartford Circus Fire

Originally posted to History for Kossacks on Sun Dec 04, 2011 at 02:00 PM PST.

Also republished by DK GreenRoots and Community Spotlight.

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