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Bayer says 'fears' not enough to prevent MIC re-start

Read the legal briefs.

CHARLESTON, W.Va. -- Lawyers for Bayer CropScience are urging a federal judge to turn down a request to temporarily block the company from restarting the methyl isocyanate production unit at its chemical plant in Institute.

Michael M. Fisher, a lawyer for Bayer, said that Kanawha Valley residents' "fears" of a major MIC accident do not rise to the level needed to obtain a temporary restraining order in federal court.

"Not only have the plaintiffs' cited and relied on the wrong standards surrounding injunctive relief, they have also failed to establish any clear proof that Bayer's lawful production of MIC would in any manner constitute a nuisance," Fisher wrote in a legal brief filed Wednesday night.

Chief U.S. District Judge Joseph R. Goodwin is scheduled to hold a hearing at 2 p.m. today on a request by 16 Kanawha Valley residents for a court order to temporarily block Bayer from restarting its MIC production unit.

Residents filed suit on Tuesday asking Goodwin to block Bayer from resuming MIC production until, among other things, comprehensive plant inspections are conducted by the U.S. Environmental Protection Agency and the federal Occupational Safety and Health Administration.

The Institute plant's stockpile of MIC -- for years, the facility stored a quarter-million pounds of the chemical on site -- has been a focus of concern for many valley residents since December 1984, when a leak of the chemical killed thousands of people near a Union Carbide plant in Bhopal, India.

Bayer is in the process of restarting the MIC unit after a significant modification project, but plans to operate it for only about 18 months before it stops making, using or storing the chemical at its Institute site.

The suit accuses Bayer of "chronically reckless operation" of the plant and "admitted dishonesty in public communications" with residents of the Kanawha Valley. It alleges Bayer can't be trusted to restart the MIC unit safely, and notes that start-ups and shut-downs can be the most dangerous times in the operation of complex chemical units.

In their suit, the residents repeatedly cite the findings of the U.S. Chemical Safety Board's investigation of the August 2008 explosion and fire that killed two workers in Bayer's Methomyl-Larvin pesticide unit. CSB investigators found, among other things, that the explosion could have damaged an MIC storage tank about 75 feet away, causing a disaster that would have rivaled Bhopal.

After that incident, Bayer announced in August 2009 that it would cut its MIC inventory by about 80 percent. And last month, the company announced it was eliminating all MIC from the plant by mid-2012, citing a corporate restructuring and an agreement with the U.S. Environmental Protection to stop making the pesticide aldicarb.

The MIC production unit at issue in the new lawsuit is on the other side of the plant from the Methomyl-Larvin unit, but the residents cite a "long history of incompetence and recklessness" as proof that the facility is a nuisance to the public.

In their response, Bayer lawyers say the company "has successfully manufactured MIC for over 40 years at the Institute plant.

"Bayer manufactures MIC pursuant to law and permits issued by the West Virginia Department of Environmental Protection," the Bayer response said. "MIC is a necessary chemical used in the manufacturing of pesticides which are essential for crop production throughout the United States and elsewhere."

Bayer lawyers said granting the injunction would hasten the elimination of 220 jobs at the Institute plant as well as another 80 positions at a related plant in Georgia.

Also, Bayer's lawyers said that the residents' request for a temporary restraining order failed to cite a new legal standard that makes it more difficult to obtain such court orders.

Generally, lawyers seeking temporary restraining orders need to show they are likely to win the case on its merits, that their clients would suffer irreparable harm if the order were not issued, and that issuing the order is in the public interest.

But the new legal standard, Bayer's lawyers said, requires the residents to show that the harm they seek to prevent is "highly probable or reasonably certain" to occur. Under earlier court standards, the residents could have simply tried to prove the "possibility" of harm if the damage they were seeking to stop was especially grave or serious.

Reach Ken Ward Jr. at kward@wvgazette.com or 304-348-1702.


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