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Most claims dropped from Bayer suit

CHARLESTON, W.Va. -- Most of the residents who sued to stop Bayer CropScience from restarting the methyl isocyanate unit at its Institute plant have voluntarily dismissed other potential claims against the company.

But one Institute man filed an amended complaint in which he alleges his wife died in October 2008 because of toxic emissions from the Bayer facility.

Gail Marie Ferguson died on Oct. 11, 2008, less than two months after the August 2008 explosion and fire that killed two Bayer plant workers and prompted an outcry over safety at the Institute facility.

In his amended lawsuit filed Wednesday, Warne Ferguson alleges that his wife was exposed to toxic chemicals as a result of that explosion and other previous incidents at the plant. The suit alleges that chemicals "were the proximate cause" of her death.

Separately, the mother of a West Virginia State University student has also sued Bayer, alleging her son died in 2008 because of toxic exposure from the 2008 incident at the plant adjacent to the university campus.

More than a dozen Kanawha Valley residents had sued Bayer to block the company from restarting the MIC unit, and on Feb. 10, U.S. District Judge Joseph R. Goodwin granted their request for a temporary restraining order. The judge had scheduled a more detailed hearing on the matter, but later declared the issue moot after Bayer announced it would not restart MIC production at the plant.

The residents had initially filed an amended complaint in mid-February, alleging 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.

Bill DePaulo, a lawyer for the residents, filed a motion to dismiss those claims without prejudice, meaning they could be refiled later.

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.

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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