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Case 1:04-cv-08825-JFK-HBP Document 118 Filed 06/26/12 Page 24 of 56that UCC designed the solar evaporation ponds, UCC’s only inputwas preliminary and did not include actual constructionparameters. Moreover, the actual ponds constructed at theBhopal Plant differ from UCC’s early suggestions, furtherindicating that such facilities were UCIL’s design. Forexample, UCC’s July 21, 1972 preliminary study of waste disposalat Bhopal notes “[t]o avoid danger of polluting subsurface watersupplies in the Bhopal area, this [evaporation] pond should belined with clay suitable for rendering the pond bottom and dikesimpervious to water.” (2005 Heck Decl., Ex. D3 at UCC04129).In January 1977, however, Humphreys & Glasgow, UCIL’sengineering consultants, determined that construction of solarevaporation ponds as originally conceived would be too costly.(Handley Decl., Ex. HHH at UCC04922). Thus, UCIL and itsengineering consultants devised a last-minute “alternativescheme for the Pond so as to effect cost reduction,” using apolyurethane lining in the evaporation ponds to “reduce use ofexpensive murum and non-swelling clay” and eliminating a catchdrain. (Id. at UCC04922-23).Similarly, UCC’s June 15, 1973 comments on UCIL’s wastedisposal plans note that UCIL was interested in building a 13-acre solar evaporation pond with a life expectancy of ninemonths, but UCC opined that “[s]izing a pond for a lifeexpectancy of under a year . . . is not advisable” and suggested24
Case 1:04-cv-08825-JFK-HBP Document 118 Filed 06/26/12 Page 25 of 56a 35-acre pond. (Handley Decl., Ex. G at UCC04546-47).Nevertheless, UCIL’s February 7, 1976 Waste Disposal System:Description of Facilities report conveys UCIL’s plan toconstruct a 10-acre evaporation pond anticipated to “last aboutfour months after Phase II goes into operation, then a secondpond will have to be constructed.” (Handley Decl., Ex. FF atUCC04654). Ultimately, one 4-acre evaporation pond with anestimated life of 4 years, one 18-acre evaporation pond, and athird back-up pond were built on a 35-acre tract of land. (2005Heck Decl., Ex. C at UCC00178; Ex. D7 at UCC01705).Finally, Plaintiffs’ argument that UCC endorsed the idea ofspraying liquid from the evaporation ponds into the airmisrepresents the document. In fact, UCIL requested UCC’s inputabout a pond spraying system design, and UCC responded that“[i]f you [UCIL] feel aeration is necessary in your situation,the normal practice is to bubble air through the liquid.However, spraying of liquid into the air should be equallyeffective.” (Handley Decl., Ex. H at UCC04594) (emphasisadded). This document perfectly encapsulates the relationshipbetween UCC and UCIL with respect to waste disposal design –UCIL may have consulted UCC about its plans early on, but UCILwas the ultimate decision maker, so primary responsibility forthe design and construction of the waste disposal system at theBhopal Plant rested with UCIL. The record with respect to waste25
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dismissed their claims and their requests for injunctive relief

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