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Two suits target Bayer Institute plant

CHARLESTON, W.Va. -- Two Institute-area residents on Wednesday sued Bayer CropScience, alleging repeated leaks and other accidents at the company's sprawling chemical plant made them sick and put them at risk of future illnesses.

Sue Davis and Donna Willis seek monetary damages, future medical monitoring and a federal court order barring Bayer from making "inherently unsafe" chemicals "in close proximity" to the community.

The suits were filed on their behalf in Kanawha Circuit Court by Charleston lawyer William V. DePaulo, who previously represented a group of residents who sued to prevent Bayer from resuming production of the deadly chemical methyl isocyanate, or MIC, at the Institute facility.

"Defendants' operation of a chemical manufacturing facility in close proximity of a residential area such as Institute, W.Va., creates an unreasonable risk of serious bodily injury and/or death to thousands of citizens of Institute, W.Va., which risk greatly outweigh any actual or perceived benefit -- economic or otherwise -- to the community at large," DePaulo writes in the suits.

Tom Dover, a Bayer spokesman, said the company was aware of the suits and does not comment on pending litigation, adding, "but we believe these cases are without merit."

The suits come two weeks after Chief U.S. District Judge Joseph R. Goodwin threw out a case filed by Institute resident Warne Ferguson. The judge said Ferguson had missed the two-year deadline for filing a wrongful death suit alleging Bayer's pollution caused the October 2008 death of his wife, Gail Marie Ferguson.

The Ferguson case was the last remaining claim in DePaulo's previous federal suit, originally filed on behalf of more than a dozen residents who opposed Bayer's restarting production of MIC.

That suit 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 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.

In February, Goodwin granted the residents' request for a temporary restraining order that blocked Bayer from restarting the MIC unit, which had been down for reconfiguration since August 2010. 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.

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 used 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.

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.

OSHA completed its inspection in late April without citing Bayer for any violations. Agency officials, however, withheld from public release dozens of pages of documents about the inspection.

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


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