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Bayer lawyers tell judge MIC unit is safe

CHARLESTON, W.Va. -- Lawyers for Bayer CropScience are trying to convince a federal judge the company's Institute plant is safe, even as a federal agency that investigated the facility continues to call for more inspections before Bayer's controversial methyl isocyanate unit is allowed to resume production.

Bayer lawyers have provided U.S. District Judge Joseph R. Goodwin with copies of two reports by a company consultant they said concluded the MIC unit met requirements of the federal Occupational Safety and Health Administration and the U.S. Environmental Protection Agency.

But on Friday -- the same day Bayer provided those reports to Goodwin -- the U.S. Chemical Safety Board wrote to OSHA and EPA to repeat its recommendations that both agencies conduct comprehensive, plant-wide inspections before the MIC unit is restarted.

Board Chairman Rafael Moure-Eraso warned in separate letters to OSHA Director David Michaels and EPA Administrator Lisa P. Jackson that records in the lawsuit indicate Bayer has not yet completed a variety of important safety precautions.

CSB investigators found that poor start-up procedures on Bayer's Methomyl-Larvin unit led to an August 2008 explosion that killed two workers, Moure-Eraso wrote, and the board is concerned "that a similar pattern is being followed prior to the startup of the MIC unit."

Moure-Eraso pointed to a Feb. 12 "emergency motion" filed by Bayer in which the company said it had not finished writing new standard operating procedures or training employees following a complete redesign and rebuild of the MIC unit. Moure-Eraso said he did not see how Bayer "could possibly have completed" these required safety steps prior to its planned date for restarting the MIC unit.

In responding to Bayer's motion, Goodwin said that he found it "remarkable" that Bayer "has yet to complete a wide variety of safety measure," just a week before its planned restart of the MIC unit.

On Feb. 10, 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. Goodwin has scheduled a hearing for Friday to hear testimony and legal arguments on whether he should grant a longer-term injunction.

In its new court filings, Bayer provided Goodwin with two reports from Donald Lorenzo, an engineer with the consulting firm ABSG Consulting. Bayer lawyers said the documents showed the company "has complied fully with OSHA and EPA's process safety and start-up requirements."

But in one of the reports, Lorenzo found that Bayer did not consistently document potential hazards in MIC piping and tanks. The 32-page, July 2010 report also found the company had not field-verified safety interlocks in the MIC unit, had no formal system to track safety recommendations, and had not set time limits for completing safety requirements to match OSHA guidance.

Lorenzo wrote that the problems "focused on documentation" and "do not necessarily imply any deficiencies in identifying hazards or controlling risks of the MIC unit."

Lorenzo's second report, dated Jan. 21, 2011, said that Bayer had completed about 95 percent of the items listed on a pre-startup safety review of the MIC unit. The 16-page report did not detail which items had not been completed.

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.

Bayer was preparing to start making MIC again within a week, following a 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.

Over the weekend, hourly employees from the Bayer plant took out an ad in the Sunday Gazette-Mail to defend the facility where they work.

"We have the experience, training, knowledge and motivation to ensure safe operations at Institute," the ad said. "This area is our home too!"

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


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