Monday, August 21 2006 12:49 Hrs (IST) - World Time -

New York: A US court has rejected a plea of some survivors of the 1984 Bhopal gas tragedy for a clean-up of the affected chemical plant site, citing 'sensitive and severe difficulties' of undertaking the exercise in a foreign land.

In doing so the US court of appeals in New York, headed by Chief Judge Edward R. Korman, affirmed an October judgement of district judge John F. Keenan turning down the plea of one Haseena Bi and 14 others for damages against Union Carbide.

"The Consul General of India submitted a letter stating that the Madhya Pradesh State government and the Union of India welcome any relief for remediation of the chemical plant site," the appellate court noted in a Aug 10 ruling.

"But that letter does not obviate any of the sensitive and severe difficulties identified by the district court and by this court regarding the administration of remediation of land owned by a foreign sovereign in its own country," it said

The district court properly denied the motion for class certification because the only relief sought by the class related to the claims for relief that had been dismissed as impracticable, Korman ruled.

As the district court observed, any clean-up of the aquifer or groundwater would affect the public generally and could not be undertaken without the permission and supervision of the Indian Government.

"Even if the aquifer could be cleaned by an offsite pump, this claim does not involve an injunction with regard to property owned by Bi or remediation of individual properties," he noted referring to the lower court's ruling.

Yet, India has indicated understandably that it would control such a process; thus the same problems (lack of control and potential conflict with the Indian authorities) are inherent in any attempt to clean-up the aquifer and groundwater as were, the appeal court said.

Bi's action arose from property damages allegedly suffered by Bi and persons similarly situated as a result of exposure to water contaminated by chemicals released from a chemical plant site operated in Bhopal in 1969-1984 by a subsidiary of Union Carbide Corporation.

Dismissal of Bi's claims for property damages was proper as her complaint does not allege that she is an owner or legal tenant on any property contaminated by leakage from the chemical plant site, Korman ruled.

Nor did Bi contest the Magistrate Judge's finding that she is not a property owner despite an opportunity to do so before the Magistrate Judge and before the district court.

Although the Magistrate Judge ultimately ruled on a ground that did not depend on that finding, the finding itself was available to the district judge to support a ruling on another or alternative ground, and Bi was obliged to contest it if she wished that it not bind her.

In any event, the record reflects that Bi resides illegally on government-owned ground. She therefore cannot sustain claims for trespass or private nuisance under New York law.

Bi's claim for public nuisance likewise fails because Bi has not alleged any special injury or damages "beyond that of the general inconvenience to the public at large." The district court did not abuse its discretion in refusing to reinstate Bi's claims for remediation of the chemical plant site and the groundwater beneath it.

"We have already affirmed dismissal of these claims because of the impracticality of a court-supervised clean-up project on land owned by a foreign sovereign," the court ruled.