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Judge extends Bayer MIC restraining order

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.

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

 


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