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Goodwin clarifies Bayer MIC order

CHARLESTON, W.Va. -- A federal judge on Sunday clarified that last week's temporary restraining order blocks Bayer CropScience from producing or manufacturing deadly methyl isocyanate (MIC), but does not prohibit certain other activities at the Institute plant.

U.S. District Judge Joseph R. Goodwin issued Sunday's order in response to an emergency motion Bayer lawyer filed late Saturday, seeking relief from or clarification of the judge's temporary restraining order.

Last Thursday, Goodwin had granted a request from 16 Kanawha Valley residents that he temporarily block Bayer from resuming production of MIC until they could get a full hearing on a lawsuit to stop the company from reopening its MIC unit.

The case over restarting the MIC unit, which has been down for a reconfiguration project since August 2010, 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.

In their Saturday motion, Bayer lawyers asked Goodwin to grant them permission to continue other activities related to that reconfiguration project, which was aimed at reducing the plant's MIC stockpile by about 80 percent.

Among other things, Bayer lawyers asked Goodwin to allow them to train MIC unit employees, complete new standard operating procedures for the reconfigured MIC unit and finish installing and testing of a variety of safety equipment in the MIC production unit.

In his three-page order Sunday, Goodwin said he found it "remarkable" that Bayer "has yet to complete a wide variety of safety measures, in light of the announcement in open court that, but for the TRO, MIC would have been produced within seven days at the Institute facility.

"Nevertheless, as long as the defendant does not engage in activities that 'in any way involve starting any part or parts of the MIC process for production,' it will not, by definition, be 'resuming or engaging in the production or methyl isocyanate' or 'participating or engaging in any part of the manufacture of methyl isocyanate,'" in violation of the temporary court order, Goodwin wrote.

In his Thursday restraining order, Goodwin had cited Bayer's "misrepresentations to the public" and a checkered safety history -- along with the "catastrophic dangers presented by the production of MIC" -- in ruling to block MIC production until a full hearing starting on Feb. 25.

Bayer was preparing to start making MIC again within a week, following a $25 million project to remake the unit and reduce its stockpile of the chemical by 80 percent.

That project was nearly completed when Bayer announced last month that it was going to stop making, using and storing any MIC at the plant by mid-2012 as part of a corporate restructuring and an agreement with the U.S. Environmental Protection Agency to cease sales of the pesticide Temik. At Institute, Bayer uses MIC to make aldicarb, the active ingredient in Temik. Aldicarb from Institute is shipped to another Bayer plant in Georgia, where it is used to formulate Temik.

Bayer wants to restart the MIC unit so it can continue making aldicarb and Temik for another 18 months until the EPA deal takes effect.

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


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