Victims of the 1984 Bhopal poison gas disaster refused to let the embers die on their U.S. lawsuit against alleged water polluters Union Carbide Company (UCC) when their lawyers this week filed arguments with the U.S. Court of Appeals for the Second Circuit that the company behind the deadly leak of methyl isocyanate was continuing to foul local wells from its plant located in the area.

The arguments in the appeal come more than a year after a New York federal district court found that UCC could not be sued in the Sahu II case, despite “compelling evidence that UCC caused the harm”, including arguments presented by plaintiff representatives EarthRights International (ERI) that a UCC employee, Lucas John Couvaras, managed the construction of the plant and was able to provide substantial new evidence that demonstrated its involvement.

Involvement of UCC

In this week’s developments, the plaintiffs said that they had provided more evidence demonstrating UCC’s responsibility, in this case the testimonies of “two leading experts [who] concluded that UCC’s technology and waste disposal strategy for the plant was improper for the site, and caused the water pollution that we still see today”, said Richard Herz, Senior Litigation Attorney at ERI.

Speaking to The Hindu , ERI counsel Marco Simons said that a decision in the case was likely in the next two to four months and the plaintiffs were “quite hopeful” about the outcome after the “hearing went well and the judges seemed pretty engaged in the case,” particularly expressing concern that the judge [in the New York court] did not adequately address the fact that the construction manager for the plant said that he worked for UCC…”

Mr. Simons noted that although the U.S. courts have shied away from any further involvement in the gas disaster case since the passage of the Bhopal Act, “If we establish in the U.S. that UCC was responsible for the plant that could be significant for the case in India” from an evidentiary standpoint.

Earlier Mr. Herz said that new evidence indicating the involvement of UCC was that Mr. Couvaras, who oversaw the design work in India for had signed a deposition saying he was a UCC employee, and further, two experts who examined the UCC and UCIL plant designs suggested that they were similar enough to effectively consider the final design to be that of UCC’s.

At the time he said that the U.S. court chose to “improperly assess the weight and credibility of this evidence, assessments that are supposed to be left to the jury,” despite which Judge Keenan had on July 31 ruled, “The manufacturing processes and waste disposal systems to be implemented at the Bhopal Plant were all initially proposed by UCIL (Union Carbide India Limited)… [and thus] defendant UCC’s motion for summary judgment is granted [and] plaintiffs’ motions relating to the deposition of Couvaras are denied.”

On December 2, 1984, poisonous gas from the Bhopal chemical plant enveloped nearby communities, killing thousands.

While the water pollution here is unrelated to the gas disaster, it reflects leaching of toxic material from the same plant ever since it was shut down, and in this regard ERI’s General Counsel Marco Simons, added, “These families have been living with Union Carbide’s pollution for decades. We remain committed to seeking the justice that they deserve.”

Responding to a discussion of evidence in Sahu II last year UCC spokesman, Tomm Sprick, said in an email to The Hindu that the U.S. Second Circuit Court of Appeals had recently dismissed “a nearly identical case” against UCC, Sahu I, and that documents created at the time events took place established conclusively that “no reasonable juror could find that UCC participated in the creation of the contaminated drinking water.”

In June 28 2012 Judge Keenan sided with UCC’s erstwhile CEO Warren Anderson in denying that they faced any individual liability because he did not personally approve the location of the Bhopal plant.