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February 24, 2011, Charleston Gazette

Judge extends Bayer MIC restraining order

Read full text of the complaint: http://wvgazette.com/static/watchdog/bayercomplaint.pdf

CHARLESTON, W.Va. -- A federal judge has extended a temporary restraining order, blocking Bayer CropScience from restarting production of methyl isocyanate at its Institute plant.
Chief U.S. District Judge Joseph R. Goodwin extended the order and delayed an upcoming hearing in order to allow a new court-appointed expert to advise him on whether Bayer should be allowed to resume making MIC.
The hearing, which will examine the possibility of a longer injunction, has been rescheduled for March 21, and the restraining order is now in effect through March 28.
Goodwin appointed Sam Mannan, a well-known chemical engineer from Texas A&M University, to inspect the plant and advise him on issues in the case.
Mannan was charged with inspecting the plant, reviewing Bayer documents and performing any other investigation needed to assess the safety of the Bayer MIC unit and "assess the probabilistic risk of a catastrophic incident involving MIC at the Bayer facility."
Goodwin ordered Mannan to provide the court and the parties with "a full written report of the results of his investigation" by March 14. The judge's order did not indicate if that report would be made public, but Goodwin did specify that Mannan appear to testify in public at the March 21 hearing.
The judge announced the move in a five-page order filed Wednesday afternoon, following a closed-door meeting late last week with lawyers for Bayer and for 16 Kanawha Valley residents who sued to try to stop the company from reopening its MIC unit.
"We welcome the order to the extent that it makes available to the court a degree of technical expertise on the issues that might not otherwise have been available," said Bill DePaulo, a lawyer for the residents.
In a prepared statement, Bayer plant manager Steve Hedrick said the company was concerned about further delays in restarting the MIC unit, but "supported the decision to delay the hearing so that the court has the opportunity to obtain answers to all of its questions."
On Feb. 10, Goodwin had granted a request from Maya Nye and 15 other 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.
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.
U.S. Magistrate Judge Mary Stanley, who is handling discovery matters for Goodwin in the case, had mentioned during several open hearings that Goodwin was interested in appointing a court expert to advise him about the MIC unit and Bayer's safety practices.
Goodwin's order said that the parties "jointly submitted" nominations of expert witnesses and that he had accepted "the parties' jointly submitted nominee." The list of nominees was not included in the public case file, and neither side would comment on the list.
Mannan is chairman of the Texas A&M chemical engineering department and director of the university's Mary Kay O'Connor Process Safety Center.
The center was established in 1995 in memory of an operations superintendent who was among 23 employees killed in an October 1989 explosion at the Phillips Petroleum Complex in Pasadena, Texas.
Mannan has written extensively about chemical plant safety and in recent years has also testified to Congress regarding the challenges of protecting such facilities from terrorism.
Earlier this month, for example, Mannan cautioned lawmakers against taking the simple approach of requiring companies to adopt "inherently safer" manufacturing technologies to reduce hazardous materials that might be involved in any terrorism incident.
"When inherent safety options are considered, we must understand and account for the challenges and difficulties in implementing inherently safer technology and options," Mannan told a House homeland security subcommittee.
Mannan has questioned a proposal by the U.S. Chemical Safety Board for new federal regulations aimed at reducing the number of accidents caused by uncontrolled reactions of combinations of dangerous chemicals.
Some sort of rules might be needed, Mannan said, but so many different chemicals are used and are reactive in different ways that writing a clear regulation might be impossibly difficult.
Mannan has studied and written on the Bhopal disaster and its impact on chemical plant safety matters, arguing in a 2005 paper that much progress has been made, but also that "there is a long road to go and a lot to be done and the need for all stakeholders to work together."
Last year, Mannan submitted comments on plans for a National Academy of Sciences study of the Bayer MIC unit and broader issues of chemical plant safety, saying the study should examine "previous worldwide incidents involving MIC" to look for lessons learned. By Ken Ward Jr.

February 10, 2011, Charleston Gazette

Judge grants order blocking MIC unit start-up

CHARLESTON, W.Va. -- A federal judge on Thursday ordered Bayer CropScience not to resume production of the deadly pesticide ingredient methyl isocyanate at its chemical plant in Institute.
Chief U.S. District Judge Joseph R. Goodwin cited a history of safety violations at the plant and the "catastrophic dangers presented by the production" of the chemical, known as MIC.
The judge said his 14-day restraining order was warranted because a group of residents who sued Bayer were likely to win the case on its merits and also were "likely to suffer irreparable harm" without relief from the court. Goodwin also cited Bayer's "alleged misrepresentations to the public" about prior incidents at the plant.
"This short-term temporary restraining order is in the public interest," Goodwin said. The judge ruled from the bench at the end of a nearly 90-minute hearing, and later issued a three-page written order. He set a hearing for Feb. 25 to consider the residents' expected request for a lengthier court injunction.
The judge's ruling 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.
"We're happy that the judge has entered the order that he has," said William V. DePaulo, lawyer for Maya Nye and 15 other residents named as plaintiffs in the case.
Bayer spokesman Tom Dover said company officials were disappointed with Goodwin's decision and would "review our options" in response to the ruling.
Last month, Bayer announced it was going to stop making, using and storing MIC at the Institute plant as part of a corporate restructuring and a deal with the U.S. Environmental Protection Agency to stop selling the pesticide aldicarb, which MIC is used to make.
Bayer had already spent more than $25 million on a project to reduce its MIC inventory by 80 percent. The unit has been off-line and there's been no MIC on site since that project began in August. In last month's announcement, Bayer said it would restart the unit and make aldicarb for another 18 months before shutting down production -- and mothballing the MIC unit -- in mid-2012. The first new MIC was scheduled to be produced in a week, Bayer said Thursday.
On Tuesday, 16 area residents filed suit in federal court to stop Bayer from restarting MIC production, armed with a U.S. Chemical Safety Board report that blamed the company's poor safety practices for an August 2008 explosion and fire that killed 2 workers.
That 2008 explosion occurred in the plant's Methomyl-Larvin pesticide production unit, which 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 away from blast, and caused a disastrous MIC release that could have rivaled Bhopal.
In court filings, DePaulo gave Goodwin a long list of other previous accidents a the facility, as well as details of Bayer's own projections that a major MIC accident could impact 300,000 people living within a 25-mile zone around the plant.
"Bayer has a very checkered history on safety," DePaulo told the judge. DePaulo reminded Goodwin that Bayer CEO William Buckner admitted during a congressional hearing that Bayer officials tried to use homeland security regulations to avoid embarrassing disclosures about the August 2008 incident and prevent debate about the plant's MIC stockpile.
"How do we know that Bayer is telling the truth?" DePaulo asked. "The court can't take things at face value."
Michael Fisher, a lawyer for Bayer, held up a copy of a state Department of Environmental Protection air pollution permit for the Bayer MIC unit, to emphasize his argument that the company has all of its required governmental approvals for the operation.
Goodwin asked Fisher, "Who at the DEP in West Virginia has any clue about what is safe or isn't safe with MIC production?" Fisher said he couldn't answer that question, but that DEP was a competent agency that had granted the company a permit.
The judge asked Fisher if the MIC unit had been inspected by anyone from any government agency prior to the company beginning the process of restarting MIC production. "No, your honor," Fisher responded.
Fisher also told Goodwin that he had "overstated" the potential economic impacts when he said in a legal brief that a temporary restraining order would "immediately" cost 300 workers in Institute and a related plant in Georgia their jobs. Fisher said the temporary order would not cost workers their jobs, but that a lengthier court order would likely do so.
DePaulo pointed out that those jobs are already scheduled to be eliminated by mid-2012 as part of Bayer's announced plan to stop making aldicarb. "They've already announced this business is going away," DePaulo said.
Fisher also repeated several times during Thursday's hearing Bayer's previous statement that "MIC was not involved in" the August 2008 incident. Chemical Safety Board investigators have said that statement is probably inaccurate and that Bayer can't prove it because key MIC monitors were not functioning the night of the explosion.
Residents argued in their lawsuit that restarting the unit continued a private and public nuisance, creating the risk of a disaster and leaving community members afraid of a major leak or other accident.
Much of Thursday's hearing consisted of Goodwin questioning lawyers for both sides about previous court rulings in other cases that defined the boundaries of nuisance law in West Virginia, and about whether the residents could meet the test for a temporary injunction until a full hearing could be held.
In his written order, Goodwin said that, based on the limited evidence currently before him, the residents were likely to win. Goodwin said West Virginia nuisance law is "flexible" and "adaptable to a wide variety of factual situations." The judge also said state courts have "acknowledged the authority for courts to enjoin prospective or anticipatory nuisance."
Goodwin also ordered the residents to post a $10,000 bond, under federal court rules 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 kw...@wvgazette.com

Campaign on Bayer Institute plant

State Journal, February 8, 2011

Lawsuit Seeks to Bar Bayer from Producing MIC

A group of Kanawha County residents filed the suit in U.S. District Court for the Southern District of West Virginia Tuesday.

CHARLESTON -- A group of Kanawha County residents filed a lawsuit in federal court Tuesday asking a judge to prohibit Bayer CropSciences from restarting the production of methyl isocyanate, or MIC, at its Institute plant until the company can show it is complying with safety recommendations.
The lawsuit was filed in U.S. District Court for the Southern District of West Virginia by William V. DePaulo on behalf of Maya Nye and 14 others and it also lists current and former citizens of Kanawha County as other plaintiffs.
MIC is a toxic chemical produced at the Institute plant and used in a number of different products, including methomyl, a dry chemical used in pesticides.
In August 2008, an explosion in the methomyl unit of the plant killed two workers and released toxic chemicals that resulted in thousands of Kanawha County residents being ordered to "shelter in place." The explosion renewed concern among different groups about safety levels at the plant and what could have happened if the explosion impacted MIC storage tanks or transfer piping nearby.
The U.S. Chemical Safety Board investigated the explosion. Earlier this year, the board released its findings and recommendations for how to improve plant safety. Among its findings, the CSB criticized Bayer for not applying standard pre-startup safety reviews and turnover practices, and it said Bayer personnel was not adequately trained to operate the methomyl unit after a new system was installed.
The lawsuit asks a judge to issue an order barring Bayer from resuming MIC production until the CSB's recommendations are put into place and the National Academy of Sciences completes its study of "inherent safety issues presented by the production of MIC in a major population center such as Kanawha County."
In addition, the lawsuit wants the federal Environmental Protection Agency and Occupational Safety and Health Administration to certify that they have inspected Bayer's Institute facility.
Nye has long been an outspoken opponent to the production of MIC and other toxic chemicals at the Institute site. She is the spokeswoman form People Concerned About MIC.


February 9, 2011 Charleston Gazette

Hearing set for Thursday on MIC lawsuit

by Ken Ward Jr.

Word just in that U.S. District Judge Joseph R. Goodwin has scheduled a hearing for tomorrow (Thursday) to consider whether Bayer CropScience should be temporarily blocked from restarting the methyl isocyanate unit at its Institute plant.
The hearing is set for 2 p.m. in U.S. District Court here in Charleston.
If you missed it, we had a story on today’s Gazette about the case, and posted a copy of the lawsuit here. As we reported:

Among other things, the suit asks for a court order to block Bayer from resuming production of MIC until comprehensive plant inspections are conducted by the U.S. Environmental Protection Agency and the federal Occupational Safety and Health Administration.
The Institute plant’s stockpile of MIC — for years the plant stored a quarter-million pounds of the chemical on site — has been a focus of concern for many valley residents since December 1984, when a leak of the chemical killed thousands of people near a Union Carbide plant in Bhopal, India.
Bayer is in the process of restarting the MIC unit after a significant modification project, but plans to operate it for only about 18 months before it stops making, using or storing the chemical at its Institute plant.

Bayer lawyers have not yet filed any papers responding to the lawsuit, but plant spokesman Tom Dover issued this follow-up statement today:
Bayer CropScience has received a copy of the court filings, and they are under review. In the meantime, it is important that the community know about the extensive efforts we have implemented to ensure the safe start up and operation of the new production unit. First and foremost, we’ve invested more than $25 million in new production, safety and communications equipment. We have completed our planned reduction of methyl isocyanate storage by 80 percent and have eliminated all above-ground storage. The employees responsible for this operation have undergone extensive process and safety training associated with these operations. And we have established several new safety and communications processes, working closely with Metro 911, the KPEPC, and others. All of these efforts — as well as numerous process and safety reviews along the way, including one recently completed by third-party experts — have led to our assurance of a safe operation. We are fully dedicated to a safe startup of these operations and remain confident that we will meet our own high expectations, as well as those of our neighbors and community.

I asked Dover if I could interview someone from the plant who is overseeing the restart of the unit, or if the company would make public this “third party” safety review referred to in his statement. I haven’t heard back yet…
Of course, the lawsuit accuses Bayer not only of “chronically reckless operation” of the plant, but also of “admitted dishonesty in public communications” with residents of the Kanawha Valley.”

Readers may recall that Bayer CEO William Buckner testified before a congressional committee that his company tried to use homeland security regulations to avoid “negative publicity” about the August 2008 explosion that killed two plant workers:
There were, of course, some business reasons that also motivated our desire for confidentiality. These included a desire to limit negative publicity generally about the company or the Institute facility, to avoid public pressure to reduce the volume of MIC that is produced and stored at Institute by changing to alternative technologies, or even calls by some in our community to eliminate MIC production entirely.

Also, the U.S. Chemical Safety Board has noted how Bayer stonewalled local emergency responders seeking information about the incident and misled local residents when company officials insisted that no dangerous chemicals were released, when in fact key monitors at the plant weren’t working the night of the incident.
CSB investigators, of course, found that the fatal explosion never had to happen, if Bayer had operated its plant properly.