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Case 1:04-cv-08825-JFK-HBP Document 118 Filed 06/26/12 Page 36 of 56UCC00109). In April 1990, NEERI issued a report finding no landor water contamination in the area of the evaporation ponds:“The overall conclusion of the study is that no contamination ofsoils and ground water was observed due to the impoundment ofwastewater in solar evaporation ponds.” (Id. at UCC00128).NEERI recommended that “Pond III can be converted into a securelandfill to contain the sediments and contaminated soil leaving11 hectares of [solar evaporation pond] area for reuse.” (Id.at UCC00109).Leakage from this landfill is at the heart of Plaintiffs’nuisance claim. Although the complaint alleges that UCC“clearly approved the landfill option,” (Compl. 114),Plaintiffs have adduced no evidence substantiating that claim.Instead, the decision to bury toxic waste in the formerevaporation pond was proposed by NEERI and mandated by theGovernment of India. Internal UCC documents confirm that UCILwould “appoint NEERI to initiate their assessment of both themajor site and ponds and develop in conjunction with [UCIL’sconsultant Arthur D. Little] a remediation strategy for bothlocations.” (2005 Heck Decl., Ex. D52 at 03507). After UCIL“develop[ed] with NEERI/ADL remediation program” for the solarevaporation ponds, “UCIL, using contractors and in accord withNEERI/ADL direction will implement remediation.” (Id. atUCC03508; Ex. D30 at UCC02049 (UCC memorandum confirms that36
Case 1:04-cv-08825-JFK-HBP Document 118 Filed 06/26/12 Page 37 of 56“responsibility for the investigation of and any futurerehabilitation of the Bhopal site rests with the affiliate,UCIL”)). In turn, NEERI issued another report in 1992 againrecommending an environmental management plan for “containmentof pond contents in a secure landfill.” (2011 Heck Decl., Ex. 8at UCC03054). Madhya Pradesh and the Government of Indiaendorsed NEERI’s plan to create a landfill. Madhya PradeshPollution Control Board notes regarding the UCIL plant statethat “[a]ccording to the recommendations of NEERI, the order forconverting Pond No. 3 into secured [landfill] has been issued bythis office.” (2005 Heck Decl., Ex. D64 at UCC01951). UCILinformed the Government of India that the “location of [a]suitable landfill in the Pond III was finalized based on theReport titled ‘Process Package for Disposal of SEP Contents atUCIL Bhopal,’ submitted by NEERI, Nagpur in November 1992 andaccepted by [Madhya Pradesh] Pollution Control Board.” (2005Heck Decl., Ex. D66 at UCC02703).UCIL certainly communicated with UCC, and employees of eachcompany attended meetings to discuss remediation plans andprogress. (2005 Heck Decl., Ex. D19 at UCC 03790 (1989 siterehabilitation meeting at South Charleston); Ex. D34 at UCC01858(meeting at UCC Danbury headquarters); Ex. D38 at UCC02361 (UCILemployees met with UCC scientists to learn about water and soilsampling techniques)). But there is no evidence, either in37
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dismissed their claims and their requests for injunctive relief

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