Kanawha residents want Bayer's studies of MIC unit
CHARLESTON, W.Va. -- Kanawha Valley residents want Bayer CropScience to turn over any company studies that examined the risks and potential consequences of a major release of the deadly chemical methyl isocyanate from its Institute plant.
A lawyer for 16 residents who won a temporary court order blocking Bayer from resuming MIC production asked for the studies during a Friday morning hearing before U.S. Magistrate Judge Mary Stanley.
William DePaulo, a lawyer for Maya Nye and other residents, said he wants the studies to use as evidence as he pursues a longer-term court order to block Bayer from resuming production of MIC, a pesticide ingredient, at the sprawling Institute facility.
On Thursday, U.S. District Judge Joseph R. Goodwin issued a 14-day temporary restraining order that blocks Bayer from restarting the unit. Now, Stanley is overseeing both sides as they exchange possible evidence, preparing for a Feb. 25 hearing where the residents will seek that longer-term injunction.
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.
During Friday morning's hearing, DePaulo told Stanley it's important for the court to learn what Bayer's own experts think the chances -- and the possible results -- of a major MIC incident would be.
"The reality is that someone somewhere inside Bayer would have done such calculations," DePaulo said, noting the studies might have been needed for insurance policies or in putting together financial reports.
DePaulo already included some rough information about worst-case accident projections that Bayer filed with the U.S. Environmental Protection Agency. The U.S. Chemical Safety Board also commissioned computer modeling to predict the results of an MIC leak at the plant, but board investigators did not include that information in their final report released last month.
CSB officials investigated an August 2008 explosion and fire that killed two workers in the Bayer plant's Methomyl-Larvin pesticide unit.
That unit 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 from the blast and caused a disastrous MIC release that could have rivaled Bhopal.
In hearings on Thursday and Friday, Bayer lawyers repeated the company's earlier contention that MIC was "not involved" in the August 2008 incident.
But the CSB investigators reported in April 2009 that the products of that night's fire could have included "highly toxic chemicals such as methyl isocyanate, hydrogen cyanide, acetonitrile, carbon monoxide, dimethyl disulfide, nitrogen and sulfur oxides and methyl thiocyanate." CSB officials said in their final report that it was impossible to pin down the exact chemical or amounts that were released because Bayer's monitoring system was inoperable and inadequate.
On Friday, Stanley suggested that the court might seek to appoint its own "special master," someone with chemical plant expertise who could inspect the MIC unit and advise Goodwin about the company's safety practices. Stanley said appointing such an expert might even help Bayer, given public mistrust of the company following a long series of accidents at the Institute plant and Bayer's admitted efforts to avoid public discussions of the facility's MIC stockpile.
"Your client has credibility problems and you're going to be fighting that," Stanley told Bayer lawyer Al Emch and Tom Hurney.
In his Thursday temporary restraining order, Goodwin cited Bayer's "misrepresentations to the public" and a checked safety history -- along with the "catastrophic dangers presented by the production of MIC" -- is ruling to temporarily halt the company's restart of the MIC unit.
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 EPA 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.
Emch told Stanley that Bayer wants to restart the MIC unit so it can continue making aldicarb and Temik for another 18 months. Farmers, especially those who grow peanuts and cotton, have yet to find adequate replacement pesticides, Emch said.
DePaulo, though, said that he has found evidence that 80 percent of the farmers who use Temik have already found replacements for it to deal with one of its biggest target pests, small bugs called thrips.
"There are a significant number of alternative products on the market," DePaulo said. "There is a whole new generation of productions that are eating up Temik's market. I think Bayer is going to abandon 'We'll hurt the poor farmers' as a defense, because the evidence that is available is going to be devastating to them."
Also Friday, the residents posted a $10,000 cash bond. Goodwin ordered them to post the bond, under a federal court rule 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 email@example.com or 304-348-1702.