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Goodwin grants order blocking MIC unit start-up

Read the judge's order.

CHARLESTON, W.Va. -- A federal judge on Thursday ordered Bayer CropScience not to resume production of the deadly pesticide ingredient methyl isocyanate at its chemical plant in Institute.

Chief U.S. District Judge Joseph R. Goodwin cited a history of safety violations at the plant and the "catastrophic dangers presented by the production" of the chemical, known as MIC.

The judge said his 14-day restraining order was warranted because a group of residents who sued Bayer were likely to win the case on its merits and also were "likely to suffer irreparable harm" without relief from the court. Goodwin also cited Bayer's "alleged misrepresentations to the public" about prior incidents at the plant.

"This short-term temporary restraining order is in the public interest," Goodwin said. The judge ruled from the bench at the end of a nearly 90-minute hearing, and later issued a three-page written order. He set a hearing for Feb. 25 to consider the residents' expected request for a lengthier court injunction.

The judge's ruling is the latest chapter in a 25-year effort by some Kanawha Valley residents to rid the community of the Institute plant's huge stockpile of MIC. Community activists have focused their concerns on MIC since December 1984, when a leak of the chemical killed thousands of people near a Union Carbide plant in Bhopal, India.

"We're happy that the judge has entered the order that he has," said William V. DePaulo, lawyer for Maya Nye and 15 other residents named as plaintiffs in the case.

Bayer spokesman Tom Dover said company officials were disappointed with Goodwin's decision and would "review our options" in response to the ruling.

Last month, Bayer announced it was going to stop making, using and storing MIC at the Institute plant as part of a corporate restructuring and a deal with the U.S. Environmental Protection Agency to stop selling the pesticide aldicarb, which MIC is used to make.

Bayer had already spent more than $25 million on a project to reduce its MIC inventory by 80 percent. The unit has been off-line and there's been no MIC on site since that project began in August. In last month's announcement, Bayer said it would restart the unit and make aldicarb for another 18 months before shutting down production -- and mothballing the MIC unit -- in mid-2012. The first new MIC was scheduled to be produced in a week, Bayer said Thursday.

On Tuesday, 16 area residents filed suit in federal court to stop Bayer from restarting MIC production, armed with a U.S. Chemical Safety Board report that blamed the company's poor safety practices for an August 2008 explosion and fire that killed 2 workers.

That 2008 explosion occurred in the plant's Methomyl-Larvin pesticide production unit, which is on the opposite end of the plant from the MIC production unit. But CSB investigators found the explosion could have damaged an MIC storage tank located just 75 feet away from blast, and caused a disastrous MIC release that could have rivaled Bhopal.

In court filings, DePaulo gave Goodwin a long list of other previous accidents a the facility, as well as details of Bayer's own projections that a major MIC accident could impact 300,000 people living within a 25-mile zone around the plant.

"Bayer has a very checkered history on safety," DePaulo told the judge. DePaulo reminded Goodwin that Bayer CEO William Buckner admitted during a congressional hearing that Bayer officials tried to use homeland security regulations to avoid embarrassing disclosures about the August 2008 incident and prevent debate about the plant's MIC stockpile.

"How do we know that Bayer is telling the truth?" DePaulo asked. "The court can't take things at face value."

Michael Fisher, a lawyer for Bayer, held up a copy of a state Department of Environmental Protection air pollution permit for the Bayer MIC unit, to emphasize his argument that the company has all of its required governmental approvals for the operation.

Goodwin asked Fisher, "Who at the DEP in West Virginia has any clue about what is safe or isn't safe with MIC production?" Fisher said he couldn't answer that question, but that DEP was a competent agency that had granted the company a permit.

The judge asked Fisher if the MIC unit had been inspected by anyone from any government agency prior to the company beginning the process of restarting MIC production. "No, your honor," Fisher responded.

Fisher also told Goodwin that he had "overstated" the potential economic impacts when he said in a legal brief that a temporary restraining order would "immediately" cost 300 workers in Institute and a related plant in Georgia their jobs. Fisher said the temporary order would not cost workers their jobs, but that a lengthier court order would likely do so.

DePaulo pointed out that those jobs are already scheduled to be eliminated by mid-2012 as part of Bayer's announced plan to stop making aldicarb. "They've already announced this business is going away," DePaulo said.

Fisher also repeated several times during Thursday's hearing Bayer's previous statement that "MIC was not involved in" the August 2008 incident. Chemical Safety Board investigators have said that statement is probably inaccurate and that Bayer can't prove it because key MIC monitors were not functioning the night of the explosion.

Residents argued in their lawsuit that restarting the unit continued a private and public nuisance, creating the risk of a disaster and leaving community members afraid of a major leak or other accident.

Much of Thursday's hearing consisted of Goodwin questioning lawyers for both sides about previous court rulings in other cases that defined the boundaries of nuisance law in West Virginia, and about whether the residents could meet the test for a temporary injunction until a full hearing could be held.

In his written order, Goodwin said that, based on the limited evidence currently before him, the residents were likely to win. Goodwin said West Virginia nuisance law is "flexible" and "adaptable to a wide variety of factual situations." The judge also said state courts have "acknowledged the authority for courts to enjoin prospective or anticipatory nuisance."

Goodwin also ordered the residents to post a $10,000 bond, under federal court rules allowing bonds to be required to pay the costs and damages sustained by any party found to have been wrongly enjoined or restrained.

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


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