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Bayer gives up fight to restart Institute MIC unit

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CHARLESTON, W.Va. -- Bayer CropScience said Friday it will not resume production of methyl isocyanate at its Institute plant, ending a quarter-century fight that had boiled down to a flurry of legal maneuvers and financial decisions made over the past five weeks.

Bayer officials broke the news to employees Friday morning, informed a federal judge who had temporarily blocked the company from restarting its MIC production unit, and then made the move public with a news release.

The decision came on the eve of a court hearing scheduled for Monday in which Chief U.S. District Judge Joseph Robert Goodwin was to consider whether he would grant a longer-term injunction to 16 residents who sued to stop Bayer from making MIC again at Institute.

"I am heartened with Bayer's decision and believe that we are safer as a result," said Maya Nye, a leader of the local group People Concerned About MIC, and one of 16 residents who filed the lawsuit against the company.

Bayer's decision likely will hasten the elimination of 220 jobs the company had planned to phase out over the next two years.

Plant manager Steve Hedrick said the company does not know the exact timeline for those workers, but said Bayer will move forward with work-force reductions "in a socially responsible manner." The 220-job reduction leaves about 280 Bayer workers and 200 contract workers at the plant.

Company officials said the court-ordered delay played a role, but that the crucial factor was Bayer's desire not to restart the MIC unit while the U.S. Occupational Safety and Health Administration was inspecting the facility. OSHA launched an investigation on March 2, and said its review of the plant might not be completed until early September.

Al Emch, a lawyer for Bayer, told Goodwin that OSHA's potential timeline made it impossible for Bayer to restart the MIC unit in time to resume production of the pesticide Temik in time for the 2011 agricultural growing season.

"This was a very difficult decision, particularly as our employees did everything possible to ensure the operational safety of our newly constructed MIC unit during the remaining production period," said Achim Noack, a member of Bayer's board of management.

The case over restarting the MIC unit, which had been down for a reconfiguration since August 2010, was the latest tactic by Kanawha Valley residents who have for years wanted to rid their community of the Institute plant's huge stockpile of the chemical that killed thousands of people in a December 1984 leak in Bhopal, India.

On Feb. 10, Goodwin issued a temporary restraining order that prohibited Bayer from restarting the unit until he could take evidence and hear more detailed legal arguments on whether the residents deserved a longer-term injunction. Goodwin originally set a hearing for Feb. 25, but then delayed the proceedings for nearly a month so he could obtain a report from Sam Mannan, a chemical engineer at Texas A&M University who runs a center focused on industry safety.

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.

On March 2, OSHA launched an inspection of the Institute plant, including the MIC unit. OSHA acted at least partly in response to a recommendation made in January by the U.S. Chemical Safety Board as part of its final report on the August 2008 explosion and fire that killed two Bayer workers. The explosion and fire were not in the MIC production unit, but CSB investigators warned that it came dangerously close to an MIC storage tank, and could have created a Bhopal-scale disaster.

Then this week, things in the lawsuit heated up after Mannan's report was provided to the judge and to both parties -- but not to the public -- on Monday.

On Wednesday, lawyers for Bayer and the residents got a chance to question Mannan during a legal deposition. By Thursday, Bill DePaulo, a lawyer for the residents, had filed a motion asking Goodwin to disqualify Mannan, alleging that the engineer had based his report largely on an MIC study conducted by one of the expert witnesses hired by the law firm Jackson Kelly on Bayer's behalf.

In a sworn statement, Mannan testified that he had asked Bayer to prepare some modeling of two types of incidents in which water contaminated the plant's MIC inventory and caused a runaway reaction and leak. One of the incidents involved a small hole in some of the MIC unit's tubing. The other was an act of terrorism or sabotage carried out with help from disgruntled plant workers -- a scenario similar to that which Carbide always said caused the Bhopal disaster.

Mannan said there was nothing wrong with him using the Bayer modeling in his report to Goodwin.

"I think the court wants my independent opinions, but where I got the information, I don't think there is any specific instruction with regard to that," Mannan said in his sworn statement, which DePaulo filed as an exhibit to his motion.

Shortly after DePaulo filed his motion, Goodwin entered an order setting a hearing for 11 a.m. Friday. The judge, though, said the hearing was not to consider DePaulo's motion, but to hear an unspecified motion from Bayer.

Then, less than a half-hour before that hearing, Bayer filed a strongly worded response to DePaulo's motion.

"The plaintiffs filed a motion to disqualify Dr. Mannan because they don't like his conclusion that the MIC unit, process and storage at Institute is safe, and does not pose an unreasonable risk to the public, and they have no way to rebut it," Bayer lawyers said in their filing.

Bayer lawyers attached Mannan's report to their court filing, making the document public for the first time.

In his 60-page report, Mannan concludes that a major MIC incident at the Institute plant is extremely remote -- perhaps something that could occur one time in every 184 trillion years.

However, the report did not contain all of the calculations that Mannan used to calculate the possible risks. Mannan also noted that Bayer was still working on implementing safety recommendations from government inspectors and its own third-party investigators.

When Goodwin began Friday morning's hearing, Bayer lawyers didn't have a motion to make, but instead wanted to inform Goodwin of the company's decision to drop efforts to resume MIC production.

A few hours later, Goodwin denied DePaulo's motion to disqualify Mannan and signed an order dismissing as moot the residents' request for a longer-term injunction against Bayer's MIC unit. The judge scheduled a hearing for Monday morning, though, to discuss other pending claims by the residents concerning personal injury and medical monitoring.

On Monday night and Tuesday, a National Academy of Sciences panel is scheduled to meet in Institute. Its members are using the Bayer plant as a case study for reducing chemical facility risks by reducing the use and storage of extremely toxic materials.

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


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