New York: Victims of the 1984 Bhopal gas tragedy have filed an appeal in a higher court here contesting a lower court’s decision that Union Carbide Corp. (UCC) cannot be sued for the ongoing contamination from the chemical plant.

The appeal has been filed in the US Court of Appeals for the second circuit by the survivors and members of the surrounding community near the plant site in Bhopal in Madhya Pradesh for toxic contamination, along with the property owners whose wells have been fouled by toxins from the plant.

The plaintiffs allege that UCC was intimately involved in the creation and disposal of toxic wastes at the Bhopal plant by designing, providing, approving and overseeing the construction of an inadequate waste management system.

The manager who oversaw the construction of the plant confirmed that he worked for UCC, not for the Indian subsidiary that officially operated the plant, the plaintiffs said. In July, however, a federal trial judge ruled that UCC was not sufficiently involved in the acts at the plant and that the project manager actually worked for the subsidiary. “The plaintiffs have provided substantial new evidence that demonstrates UCC’s involvement. But the court chose to improperly assess the weight and credibility of this evidence, assessments that are supposed to be left to the jury," counsel for the plaintiffs and litigation coordinator for EarthRights International, Rick Herz said.

Non-governmental organisation EarthRights International said since judges are not supposed to weigh evidence without letting a jury hear the case, the plaintiffs believe that the Second Circuit will correct the error in judgement against UCC.

Another defendant in the case was Warren Anderson, who was the CEO of UCC at the time of the Bhopal disaster. He died in September this year at a nursing home in Florida at age 92. In the appeal filed last Friday, the plaintiffs said the project manager who approved all of the detail design for the Bhopal plant, Lucas John Couvaras, stated in a newly-submitted declaration that he was working for UCC, which the court chose to disregard.

“The new evidence here – most notably the declarations of Couvaras and the experts – fills the gaps identified in (the case). A rational jury could credit Couvaras’ declaration that he was a UCC employee, and agree with Plaintiffs’ experts that UCC’s manufacturing process and waste disposal strategy were causes of the pollution. Summary judgment must be reversed," the appeal said.

In December 1984, poisonous gas from the chemical plant enveloped nearby communities, killing over 5,000 people. UCC then largely abandoned the site, allowing toxic wastes to leach into the local water supply. EarthRights had filed the lawsuit in the southern district of New York on behalf of residents of Bhopal, saying land and water of the citizens are being contaminated by waste from the plant.

In his July ruling, US district judge John Kennan had ruled that UCC was not sufficiently involved in the acts at the plant and that the project manager actually worked for the subsidiary. PTI

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