Judge asks MIC parties to list douments they want sealed

CHARLESTON, W.Va. -- A national lobbying group for the chemical industry wants a federal judge in West Virginia to tread lightly in a lawsuit over a deadly chemical stored at a Bayer CropScience plant, arguing that his rulings could have nationwide implications.

In a friend-of-the-court brief filed Monday, the American Chemistry Council urges U.S. District Judge Joseph Goodwin not to declare storage tanks of methyl isocyanate, or MIC, a public nuisance as some residents are demanding.

Because West Virginia is a major producer of raw chemicals for the rest of the industry, it says, such a ruling could cause widespread economic harm.

MIC is the same chemical that killed thousands of people in Bhopal, India, in an accidental leak in 1984. Bayer CropScience's Institute facility is the only one in the nation that still stores large volumes of it.

Residents who live near the plant say in their lawsuit that MIC poses "an imminent risk of a catastrophic industrial disaster" and should be declared a nuisance, but the industry claims that would be an inappropriate expansion of state law.

William DePaulo, an attorney for the residents, disagreed Tuesday with the industry group, saying the law in West Virginia supports the principle of anticipatory nuisance in virtually the same language as his lawsuit.

"There is no departure from the law of West Virginia," he said in an e-mail. "It is simply being applied to a novel set of facts. The law is the same."

Bayer wants to restart an MIC unit that has been shut down for renovations, but that's on hold while Goodwin hears the case and considers expert testimony that was to be submitted this week. The next hearing is set for March 21.

The council argues that residents worried about an MIC leak have no evidence to show they've been harmed by having the chemical in their community or that fear of a spill interferes with their quality of life. Even if they could, the council says, West Virginia's Supreme Court has previously ruled that even a "well-founded fear" is insufficient grounds for a nuisance label.

The group also insists the industry is already well regulated by a variety of federal bodies, including the Environmental Protection Agency, the Occupational Safety and Health Administration and the Department of Homeland Security.

West Virginia is home to 150 chemical and polymer manufacturing companies that employ 12,800 workers, the council says.

Although that's a fraction of the nearly 14,000 chemical businesses nationwide, West Virginia's companies "provide the raw materials critical to the function of virtually every other domestic industry, on both a regional and national level," the council says.

Figures for 2008 show West Virginia's chemical industry generated $720 million in direct payroll and $1.36 billion in wages for suppliers and other related businesses. The council also claims the industry generated $220 million in federal personal income taxes and $40 million in state and local income taxes.

"The promotion of consistent, uniform regulation, avoidance of unexpected disruptions in the supply of useful, important products, and the protection of well-paying jobs ... has high social value," the brief argues. "Accordingly, this court should hesitate before intervening in the operation of a heavily regulated, chemical manufacturing unit."

For decades, Bayer CropScience and previous owners of the sprawling Institute complex have made MIC, which is used in pesticides. Production was halted last August for upgrades to the unit, but Bayer CropScience announced it would start making the chemical again this year and continue through mid-2012 before halting permanently.

Concern over the storage of MIC resurfaced after a 2008 explosion near the tank killed two plant workers.

As he weighs the current lawsuit, Goodwin has questioned whether Bayer CropScience has done enough to make its MIC facilities safe. The company says it has reduced its MIC stockpile by 80 percent and eliminated all aboveground storage.

The plaintiffs have also subpoenaed two state officials -- Department of Environmental Protection Secretary Randy Huffman and DEP environmental advocate Pam Nixon -- to testify about the implementation of recommendations made earlier this year by the U.S. Chemical Safety Board.

In a separate court filing, the DEP says Nixon has no relevant information, and Huffman's dealings with the case have been limited. They requested the subpoenas be waived and that the court instead question Mike Dorsey, the DEP's chief of homeland security and emergency response.

That motion has been referred to a magistrate for a ruling.