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BANO v. UNION CARBIDE CORPORATION

March 18, 2003

SAJIDA BANO, HASEENA BI, SUNIL KUMAR, DR. STANLEY NORTON, ASAD KHAN, SHIV NARAYAN MAITHIL, DEVENDRA KUMAR YADAV, BHOPAL GAS PEEDIT MAHILA UDYOG SANGATHAN (BGPMUS), GAS PEEDIT NIRASHRIT PENSION BHOGI SANGHARSH MORCHA (GPNPBSM), BHOPAL GAS PEEDIT MAHILA STATIONERY KARMACHARI SANGH (BGPMSKS), BHOPAL GAS PEEDIT SANGHARASH SAHAYOG SAMITI (BGPSSS), AND BHOPAL GROUP FOR INFORMATION AND ACTION (BGIA), ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED, PLAINTIFFS,
v.
UNION CARBIDE CORPORATION AND WARREN ANDERSON, DEFENDANTS.



The opinion of the court was delivered by: John F. Keenan, United States District Judge.

OPINION AND ORDER

Defendants Union Carbide Corporation ("UCC") and Warren Anderson ("Anderson") move pursuant to Rules 12(b)(1), 12(b)(6) and/or 56 of the Federal Rules of Civil Procedure to dismiss Counts 9 through 15 of the Amended Complaint.

For the reasons set forth below, defendants' motion is granted in its entirety.

Procedural History

On November 15, 1999, plaintiffs filed a class action complaint against defendants asserting claims under the Alien Tort Claims Act, 28 U.S.C. § 1350, for alleged human rights violations arising out of the Bhopal gas Disaster in India on December 2-3, 1984. See In re Union Carbide Corp. Gas Plant Disaster, 634 F. Supp. 842, 844 (1986). On January 4, 2000, plaintiffs amended their complaint to add claims under New York State common law for alleged environmental pollution in and around the Bhopal plant. On August 28, 2000, this Court granted defendants' motion to dismiss and/or for summary judgment and dismissed plaintiffs' Amended Complaint in its entirety. Bano v. Union Carbide Corp., No. 99 Civ. 11329, 2000 WL 1225789 (S.D.N.Y. Aug. 28, 2000).

The Second Circuit affirmed the dismissal of Counts 1 through 8 of the Amended Complaint alleging claims arising out of the Bhopal Disaster. Bano, et al. v. Union Carbide, et al., 273 F.3d 120, 122 (2d Cir. 2001). The Circuit Court remanded the state law environmental claims contained in Counts 9 through 15 of the Amended Complaint (the "environmental claims"). Id. at 122, 132-33. Those claims are the subject of this motion.

Factual Background

The Union Carbide India Limited ("UCIL") Bhopal plant began operations as a formulations plant in 1969 on land leased from the Indian State of Madhya Pradesh, comprising 88 acres. See Am. Compl. ¶ 77. UCIL was incorporated under Indian law and 50.9% of its stock was owned by the defendant corporation. In re Union Carbide Corp., 634 F. Supp. at 844. Pesticides were imported from Union Carbide in the United States and formulated in Bhopal into a saleable product. Am. Compl. ¶ 77. In 1979-1980, UCC decided to back-integrate the UCIL plant to manufacture pesticides. Defs.' Rule 56.1 Stat. ¶ 1. During the manufacture of pesticides, hazardous wastes were generated and dumped within the plant's premises. Three solar evaporation ponds located on the plant site were used for the disposal and treatment of chemical wastes. Id. ¶ 1.

On night of December 2-3, 1984, a deadly gas leak from UCC's facility killed thousands of people in Bhopal, India and maimed several thousand ("the Disaster"). Am. Compl. ¶ 50. Immediately after the Disaster, the UCIL plant was closed by order of the Indian government and placed under the control of the Indian Central Bureau of Investigation ("CBI"). Id. ¶ 2. The plant never resumed normal operations, and all activity at the site was closely monitored and controlled by the CBI, the Indian courts and the Madhya Pradesh Pollution Control Board. Id.; Krohley Decl. 5/6/02 ¶ 3.

In April 1990, the National Environmental Engineering Research Institute ("NEERI") produced a report finding that no groundwater contamination had been caused by the solar evaporation ponds. Am Compl. ¶ 4. The report concluded that: the soil within 2.5km of the solar evaporation ponds was not contaminated by the ponds; the water in the test wells outside the area of the ponds was within drinking water standards; the water quality of water tested within a 10km radius of the plant indicated no contamination from the ponds. See Krohley Decl. ¶ 4. The work recommended by the report was undertaken by UCIL and later completed by the renamed company under new ownership following the sale of Union Carbide's shares in UCIL. Id. ¶ 4.

On September 9, 1994, Union Carbide sold all of its UCIL shares to McLeod Russell (India) Limited. Id. ¶ 5. McLeod Russell renamed UCIL "Eveready Industries India Limited" ("EIIL"). Id. Following the sale, Union Carbide had no involvement in EIIL's continuing remediation work at the former UCIL plant site. Id.; Krohley Decl. ¶ 6.

In October 1997, NEERI issued a report finding contamination within the former UCIL plant, specifically in its waste disposal areas, but finding no groundwater contamination outside the plant. Id. Krohley Decl. ¶ 6. On July 7, 1998 the plant site was turned over by EIIL to the State of Madhya Pradesh at the request of the state government, which terminated the leases originally granted to UCIL because the land was no longer being used to operate a factory, an express condition of the leases. Id. ¶ 7; ¶ 8. On July 28, 1998, the Madhya Pradesh Pollution Control Board announced that there had not been any off-site contamination caused by the operations of the plant. Id. ¶ 8.

On November 29, 1999, Greenpeace issued a report stating that "massive environmental contamination, including contamination of the drinking water of residents in the nearby communities, entirely unrelated to the Bhopal Disaster, has taken place at the UCIL site where large amounts of toxic chemicals and by-products from the factory's original manufacturing processes continue to pollute the land and water." Am. Compl. ¶ 95. The report also indicated that "by approximately 1998, the Indian government had detected offsite contaminants and posted warning signs reading "water unfit for consumption" and "do not use for drinking" at wells north of the plant." Am. Compl. ¶ 103.

The Present Motion

Plaintiffs are one individual, Haseena Bi ("Bi"), who was named as a plaintiff in the Amended Complaint, and three organizations: the Bhopal Gas Peedit Mahila Udyog Sabgathan, the Gas Peedit Nirashrit Pension Bhogi Sangharsh Morcha, Bhopal, and the Bhopal Gas Peedit Mahila Stationery Karmachari Sangh. See Am. Compl. ¶¶ 5-8, 28-30. Bi alleges personal injuries based on alleged suffering from various ailments which she attributed to contamination of the local well water near her home in Atal Ayub Nagar, located next to the Bhopal plant. Her home is approximately 400 meters (1,312 feet; approximately one quarter mile) from the perimeter compound of the plant. McCallion Let. Dec. 10, 2002. The hand-pump she used to get water was approximately 200 meters (656.17 feet) from the perimeter of the plant. Id. Bi claims that after moving to Atal Ayub Nagar in 1990 she "began having chronic abdominal pains, severe burning sensations in her stomach as well as all over her body and recurrent, bleeding rashes on her limbs ever since she moved [there]." Am. Compl. ¶¶ 6-7. Bi and her family "had long suspected that these illnesses and physical problems were caused by the water which they used for drinking and washing", Am. Compl. ¶ 7, which had a "strong, noxious smell of chemicals with an oily layer on top." Bi Aff. ¶ 8. Bi and her family used water from a hand-pump and well in the area. Am. Compl. ¶ 8. On November 29, 1999, Greenpeace tested water from this well and found it was contaminated. Id. Plaintiff organizations "seek redress for Defendants' severe pollution of their land and drinking water, which has caused Plaintiffs serious health problems. Defendants caused this pollution by recklessly dumping, storing and abandoning large quantities of highly toxic pollutants at its plant in Bhopal, India, despite knowing that these pollutants were likely to contaminate their neighbors' water and land." Am. Compl. ¶¶ 95-105; Pl.'s Opp. Br. at 1. The remaining environmental claims seek relief under New York common law for negligence, public nuisance, private nuisance, strict liability, medical monitoring, trespass and equitable relief. See Am. Compl. ¶¶ 180-213.

Defendants contend that Union Carbide has not owned any stock in UCIL for over seven years and the Madhya Pradesh state government has had exclusive ownership, possession and control of the land for nearly four years, including 1999, the year in which Greenpeace first claimed to have found groundwater contamination at the former UCIL plant site. Therefore, defendants urge, plaintiffs' claims should be dismissed.

Jurisdiction in this case is based on diversity pursuant to 28 U.S.C. § 1332 because there is complete diversity between the parties and the matter in controversy exceeds $75,000 exclusive of costs and interests.

Venue is proper pursuant to 28 U.S.C. ยง 1391 (a) because defendants do business within the District and/or own property within this ...


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