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Judge: Remaining claims vs. Bayer are insufficient

CHARLESTON, W.Va. -- A federal judge expressed skepticism on Monday about the remaining claims in a lawsuit filed against the Bayer CropScience plant in Institute by 16 Kanawha Valley residents.

U.S. District Judge Joseph R. Goodwin said documents filed so far in the case don't appear to him to meet the legal requirements for the residents to pursue their claims.

"There is a requirement for pleading a tort that there be wrongful conduct causing harm," Goodwin said during a hearing this morning. "Wrongful conduct alone won't get it. Harm alone won't get it. You have to have that connection."

Goodwin held a brief status hearing in the wake of Friday's announcement by Bayer that it would not continue a legal fight to try to resume production of the deadly chemical methyl isocyanate at the Institute plant.

Sixteen residents had sued Bayer to block the company from restarting the MIC unit, and on Feb. 10, Goodwin had granted the residents a temporary restraining order. The judge had scheduled a more detailed hearing on the matter to start today to consider whether he would grant a longer-term injunction.

Goodwin called off the preliminary injunction hearing, and entered an order declaring the matter moot because of Bayer's announcement that it would not restart MIC production.

But an amended complaint filed Feb. 14 by Charleston lawyer Bill DePaulo on behalf of the residents also alleges that leaks of "significant, dangerous and noxious chemicals" by Bayer constitute a nuisance. The amended complaint alleges bodily harm, damage to property and economic losses because of Bayer's chemical releases.

Those parts of the suit do not appear to specify the MIC unit, but make allegations regarding the entire Bayer facility. The residents ask for compensatory and punitive damages, as well as medical monitoring to be paid for by Bayer.

DePaulo conceded that his legal filings on those issues have so far not provided much detail. But he said he was focused previously on time-sensitive matters regarding the MIC unit.

Goodwin gave DePaulo 10 days to file another, more detailed amended complaint and urged the two sides to get together to try to narrow the remaining issues. The judge gave Bayer 20 days to respond to whatever DePaulo files.

The case over restarting the MIC unit, which had been down for a reconfiguration since August 2010, was the latest chapter in a 25-year effort by some Kanawha Valley residents to rid their community of the Institute plant's stockpile of the chemical. 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 Friday's announcement, Bayer said it did not want to restart the MIC unit while the U.S. Occupational Safety and Health Administration has an inspection of the unit ongoing. OSHA has said it might not complete its work, started March 2, for six months. Bayer says that timeline would cause the company to miss the 2011 growing season for the pesticide Temik, which is made using MIC.

Bayer had been preparing to start making MIC at the Institute plant again as early as Feb. 17, 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 in January 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 Temik because of concerns the product could make food unsafe.

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 wanted to restart the MIC unit so it could 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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