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Editorial:Wrong questions. Wrong answers

By Nityanand Jayaraman

The Union Carbide disaster in Bhopal had several lessons to teach. Unfortunately, very few of these lessons have been learnt. Why? Perhaps because of our propensity to ask the wrong questions. Questions such as: “What is the best place to dump toxic waste?” The right question for a true democracy would be: “How can we avoid generating hazardous wastes?”

 It is now the 20 th anniversary of the Union Carbide disaster in Bhopal . No lessons have been learnt from it. And it is unlikely that any will be, because the lessons teach us not about better technology or stricter regulation. The lessons are about a basic respect for life – the living and the yet-to-be-born, about the primacy of life over profits, about how disasters will happen as long as some people can be called upon to pay for the lifestyles of others, about the futility of our search for a safer world unless we abandon the notion that the existing industrial and corporate cultures are a given that cannot be disturbed.

If one were to learn from Bhopal , one would first have to know what caused the disaster, why so many people were affected, what conditions may have averted the disaster and so on. Second, one would have to use this information to put in place the changes required to prevent a repeat of the disaster. In the aftermath of Bhopal , we also realised that, as a society, we were unprepared to deal with the medical, economic and social rehabilitation of victims, and meting out exemplary punishment to the perpetrators of industrial accidents as a means of providing a deterrent.

In the case of Bhopal , the causes of the disaster are known: the technology that was exported to India by Union Carbide was inherently flawed and untested; several safety systems were either dismantled or pending repair as the company went ahead with a no-holds-barred cost-cutting drive.

The death toll – about 8,000 in a matter of days – and the 500,000 or more people that were affected, were a direct result of siting a hazardous factory in a thickly-populated neighbourhood. Another factor that impeded the saving of lives was Union Carbide’s refusal to divulge toxicity-related information regarding the chemicals released that night. Ironically, the Corporation was secure in the knowledge that industrial secrecy laws protected its right to refuse disclosure of this information. The information remains a secret to this day.

The disaster could have been averted if earlier warnings had been heeded. Worker injuries, toxic gas leaks and even deaths predated the disaster. These were accompanied by complaints to the management and the regulatory agencies, all of which were ignored.

Twenty years after the Bhopal disaster, the demands of the survivors remain the same as they were in the years after the incident – punishment of the guilty, just compensation for survivors, clean-up of the contamination, economic and medical rehabilitation of the victims and their children. Meeting all these demands would tell us exactly what is needed to prevent another Bhopal from happening. More importantly, resolving the Bhopal demands would also tell us how economically unviable it is to bypass informed consent and pander to corporate interests.

On the face of it, the lessons taught by Bhopal are simple enough to internalise. Use well-tested processes that have multiple layers of built-in safety. Don’t locate hazardous industries near residential areas. Require and ensure the disclosure of chemicals and chemical hazards by industries to workers and nearby communities. Pay heed to worker and community complaints about pollution.

So why won’t these lessons be learnt? Political expediency is one reason; economic viability is another; and the imbalance of power between citizens and corporations yet another. Simply put, the current culture among regulators, planners, policymakers and judges, not to mention industrialists, allows a community to exercise its right to a hazard-free living and working environment only if that is economically and technologically viable for the industry, and politically expedient for the powers-that-be. In many cases, a community’s aspirations for a clean environment may just not be economically viable, the dominant culture argues.

IN Fertilisers and Chemicals Travancore Employees Association vs Law Society of India , the Supreme Court overturned an order by the Kerala High Court directing the closure of an ammonia storage tank located in a populated neighbourhood. In a telling article on industrial risk in Indian law published in the Economic and Political Weekly (October 9, 2004), legal commentator Usha Ramanathan writes that “Pragmatism, and a perception of risk and hazard as inherent in the ways of the modern world, led the [Supreme] Court to draw up a calculus between ‘utilities which exist in public interest… and human safety’.”

The Court argues that “we do not discount such risks but [these] are counterbalanced by services and amenities provided by these utilities.” Tacitly, the Supreme Court has condemned a special group of people to bear the risks associated with industrial installations regardless of whether or not those people benefit from the service or amenity, and whether or not they are willing to be the risk-bearers. The SC may have referred only to “public interest” installations. But even prior to this order, regulators, planners and policymakers had extended this argument to the private sector.

Which is this special group of people who are called upon to sacrifice for the sake of public, or even private, interest? As a rule, these are people who lack political power, are poor, or do not know enough about the dangers of hazardous industry to prevent them being set up in their communities.

The world over, it is a fact that hazardous facilities, garbage dumps and toxic waste landfills are disproportionately sited in working class and/or – in India’s case – lower-caste neighbourhoods. The unspoken assumption is that if they are poor, they can’t be too choosy about the investments that are made in their community. In the tussle between sensible siting and political expediency, the former has consistently been a loser.

Here’s one telling reminder of how even the basic parameter of industrial planning – siting – has not been internalised by India’s decision-makers: Early this year, Tamilnadu Waste Management Ltd proposed to set up a Treatment, Storage, Disposal Facility (TSDF) in Melakottaiyur village near Chennai, to receive toxic wastes from various parts of the state. Despite its fancy name, TSDFs involve a state-of-the-art hole in the ground for dumping some toxic wastes, and a state-of-the-art hole in the wall for burning others. The landfill site, which was chosen by experts, was to be located in Melkottaiyur lake. The area surrounding the proposed landfill is fertile agricultural land. A balwadi is located barely 500 metres from the project site, and a Dalit residential colony abuts the site.

Alerted by public interest organisations in the city, Melkottaiyur villagers rallied around to prevent the siting of the toxic dump on their land. More than 2,000 people attended the statutory public hearing held by the government. Not only did the people demand that the industry representatives that were sitting alongside the district collector chairing the public hearing be sent off the dais, they squarely rejected the project and vowed resolutely to fight it.

Melakottaiyur, for the reasons stated above, was certainly not appropriate even by the government’s own siting guidelines that require landfills to be located away from habitation, areas with high groundwater table, water sources or sensitive areas such as schools or protected areas.

After its visit to Tamil Nadu, the Supreme Court Monitoring Committee (SCMC) on Hazardous Wastes recommended that the Tamil Nadu Pollution Control Board should ‘surrender or put on hold’ the Melakottaiyur site. Instead, the Board was asked to ‘ try and locate common landfills within the confines of industrial areas and industrial estates’.

Taking the country back to pre-Bhopal days and even contradicting the observations of its predecessor -- the High Powered Committee (HPC) on Hazardous Wastes -- the SCMC also opined that “for secured landfills within industrial estates. . . it may not be necessary to conduct public hearings since the industrial estate is already an approved notified site.”

This order is dangerous for two reasons. First, the proposal to do away with a public hearing robs communities of their only chance to know about the project or influence it. Ironically, it was not the concept of the landfill itself, but the democracy that allowed the Melakottaiyur people to resist that was questioned by the SCMC. SCMC’s reasoning seems to suggest that some community has to bear the risk of hosting the landfill.

Contrary to the SCMC recommendations, a report submitted by the HPC to the Supreme Court emphatically states that: “it is notthe statutory environment protection authorities that will protect and save the natural resources. . .but members of an alert and informed community, fully aware of the nature of hazards and the impacts of these on their health. Potentially affected communities and the public at large must be involved in every aspect of hazardous waste management. . .Absence of structures for public consultation and participation have resulted in India becoming the location of some of the most polluted areas in the world.” [Emphasis as in original]

The second danger of the SCMC order is its implicit assumption that industrial estates were notified in line with stringent industrial siting criteria. In other words, industrial estates, by and large, are not located near residential areas or water bodies or on land with a high water table. If this were true, there would not be community protests against pollution such as one sees in Eloor, Paradip, Cuddalore, Vapi and a thousand other places in India . Industrial siting has little to do with environmental criteria and everything to do with the availability of inexpensive land, good water, access to raw materials and markets, and cheap labour.

The SCMC order would revictimise those already suffering the effects of the first siting mistake made by the government. Rather than clean up these places and rehabilitate affected communities, the order condemns them to a life with another toxic landfill thrown in. Did we learn any lesson at all on siting hazardous industry after Bhopal ?

WHAT happens once a hazardous industry is inappropriately sited? Improper siting inevitably leads to injury – of worker, community and the environment. With a responsive regulator, unsafe workplace or environmental practices can be easily detected and injuries prevented. But if the regulator fails, victims of industrial pollution have to pitch a battle against a stacked deck involving the corporation, the regulators and the courts on the one side, and a sceptical public that views victims as people out to make a fast buck.

Take the case of Hindustan Lever Ltd’s (HLL) now-closed mercury thermometer factory in the tourist and school town of Kodaikanal in the Palni hills of Tamil Nadu. A year before the Bhopal disaster, HLL’s predecessor Pond’s India Ltd imported a 30-year-old thermometer factory from Watertown , New York . The factory was shut down in New York reportedly for environmental reasons. Upon relocation, the factory was allowed by the Government of India to import mercury, glass and other raw material, export all thermometers, and leave behind the mercury wastes in India .

Mercury is a heavy metal that transforms into deadly methyl mercury in contact with organic matter. In Minamata, Japan, Chisso Corp discharged mercury wastes into a bay. Hundreds of villagers exposed to the methyl mercury through their food died, and thousands more, including children born to exposed people, were injured.

For its factory in Kodaikanal, HLL’s predecessor was allowed to convert agricultural land to industrial use. It set up its factory on a bluff whose slopes drained into the perennial Pambar River through Shola forests – a sub-montane ecosystem that is unique to the Palni Hills and Nilgiris.

During its operation, HLL dumped mercury wastes in the Sholas and in scrapyards and publicly accessible locations around South India . Fortuitously, there was an upright officer leading the Pollution Control Board at the time. HLL was ordered to shut down and clean up. At least 300 tonnes of mercury waste were even re-exported to the US . On the environmental front, at least, things were going well.

However, ex-workers say that over 16 years of operating a shoddily-run factory, HLL and its previous owner Pond’s India Ltd have exposed between 600 and 800 workers to mercury in the workplace. Workers report mercury spills as a routine occurrence. “Anytime you went to the shopfloor during work hours, you’d find mercury on the floor. The oven room and distillation rooms were thick with mercury vapour and none of us had proper masks or protective equipment,” recounts Raja Mohammed, an ex-worker who is currently organising ex-employees.

HLL’s pollution in Kodaikanal was not accidental; it did not arise despite their adherence to stringent environmental and worker safety measures. HLL itself admits that “thermometers are a product line which is not core to Unilever. . .[The factory’s] long-term future within Unilever was under review even before recent events, given the strategic decision to exit non-core products.”

HLL’s statement willy-nilly acknowledges that as a non-core facility, the factory was not given as much attention as other core facilities. In common parlance, that could be called ‘negligence’. Negligence with a non-hazardous activity may not be of much concern except to shareholders. But with mercury, the consequences can be severe.

The health concerns raised by ex-workers are yet to find a receptive ear. At least 15 employees -- averaging around 30 years -- have died, and the workers say it is most likely because of their workplace exposure. Scores of people bear visible signs – skin diseases, premature greying of hair. The number of people reporting incessant headaches, stomach pain, kidney problems and blood in the urine ought to lead the Factories Inspectorate to wonder if workplace exposure to mercury could be the common factor behind all these ailments.

The Factories Inspectorate – which is responsible for ensuring workplace safety – has given HLL a clean chit without conducting any appropriate medical evaluation on the workers exposed to mercury.

The SCMC is the only statutory body to have acknowledged mercury-related health damage of workers and community residents. “The situation at HLL is extremely serious in nature. There can be no two opinions that remediation and rehabilitation of the natural environment and of workers and others are both urgently required. . .,” the SCMC reports.

However, even the SCMC only “suggests” health rehabilitation of affected workers “by HLL as a social rehabilitation package”. The workers, it seems, do not have a right to the rehabilitation despite the fact that they were injured due to mercury exposure arising from illegal workplace practices. This is not unlike the Bhopal case, where the Supreme Court directed Union Carbide to set up a 500-bed hospital as a humanitarian gesture.

The ability of corporations to get away with mass poisoning such as this is protected by law. A company can poison an entire reservoir or river, wipe out a town, run away with your grandmother’s term deposit, or convert the sacred lands of native people to radioactive wastelands. For the worst of these, the liability is limited – in most cases – to civil damages not exceeding the assets of the company. Any creative accountant will tell you how to manage your assets in times of liability.

SO is there a way out of this depressing mess? Yes, there is. But we’re unlikely to take that route for the reasons stated at the beginning of this editorial. Not all questions have answers. Wrong questions, especially.

The SCMC is widely considered to be one of the more upright, credible and creative environmental committees appointed by the Supreme Court. In recommending that secure landfills be set up in notified industrial estates without the mandatory public hearing, the SCMC has demonstrated its susceptibility to political expediency and economic viability. Its order underlines the pressure on the Committee to find an answer, quickly, to the wrong question: “Where can we dump our toxic wastes?”

The SCMC, for instance, advises the Tamil Nadu Pollution Control Board that “the search for a TSDF may be resumed. . .once public confidence about such facilities has been established.”

It may be worthwhile for the Board to consider mandating an aggressive programme of reducing the use and release of toxic chemicals from existing polluters, even while screening investments in the state to prevent the setting up of more hazardous industries. Simultaneously, the state and even the country should encourage the setting up of clean industries that can feed off the natural and human resources available indigenously.

Time and technology alone will not instill public confidence.

There has to be change in the mindset of regulators and policymakers. Collectors, police and pollution control board officials are commonly seen as anti-people, pro-industry, corrupt, unapproachable and disrespectful of villagers. It is public confidence in these people that needs to be established, and that has little to do with the public and everything to do with the regulators.

In a truly democratic set-up where all people are equal, it would be virtually impossible to locate a hazardous waste dumpsite. The right questions for a true democracy or an aspiring one would be: “How can we avoid generating hazardous wastes?”

The argument on economic viability, unfortunately, is one-sided. If the argument were extended to workers and communities, we would be speaking a different language. Pollution-impacted communities and workers can tell you how their ill-health is economically unviable for them. The answers to industrial hazards, toxic wastes and pollution require a redefinition of development and of corporations. It requires subjecting them to the rigorous, time-consuming and frustrating process of democracy.

Just as we may never attain the ideal of true democracy, we may never truly eliminate hazardous wastes. But a lot can be done in moving towards the ideal.

(Nityanand Jayaraman is an independent journalist and researcher focussing on investigating corporate abuses of the environment and human rights. He is based in Chennai, and is associated with the International Campaign for Justice in Bhopal)

InfoChange News & Features, December 2004