Judge issues temporary restraining order for Bayer, MIC

By Jessica M. Karmasek and Chris Dickerson | Feb 14, 2011


CHARLESTON (Legal Newsline) -- A federal judge issued a temporary restraining order on Thursday temporarily prohibiting Bayer CropScience from making the chemical methyl isocyanate, or MIC, at a West Virginia industrial park.

U.S. District Judge Joseph R. Goodwin issued his three-page order at the request of 16 Kanawha Valley residents, some of whom live near the Institute Industrial Park.

In it, he wrote, "Given the limited record, including limited evidence of the defendant's history of safety violations, misrepresentations to the public, and multiple accidents and chemical leaks, and in light of the fact that the court has not had the opportunity to conduct a preliminary injunction evidentiary hearing, I FIND that the plaintiffs are likely to suffer irreparable harm in the absence of this temporary relief."

On Sunday, Goodwin clarified the ruling some after a Bayer attorney filed an emergency motion Saturday. In his Sunday clarification, Goodwin said the order blocks Bayer from producing or manufacturing MIC, but it does not stop other activities at the Institute plant.

MIC was produced at the site through the end of August 2010, when the unit was shutdown to allow the construction work associated with completing the MIC safety enhancement project that was announced in 2009. It was expected to start back up next week.

MIC, one of the chemicals manufactured at the plant, also was involved in a 1984 leak from a former Union Carbide plant in Bhopal, India. The leak killed thousands and sickened even more.

An attorney representing the residents argued this week that Bayer's promise that the start up of the reconfigured unit would be done safely could not be trusted.

Goodwin, in his order, found "that the balance of equities tips in the favor of the plaintiffs, given the catastrophic dangers presented by the production of MIC compared with the potential for economic damages alleged by the defendant."

He said the temporary restraining order also is in the public interest.

Bayer CropScience spokesman Tom Dover told The Associated Press that the company is disappointed in the judge's ruling.

"We believe such an action is not warranted and could have an immediate and adverse impact to our site and to the farmers who depend on our products to help produce crops important to American agriculture," he said. "We will review our options in response to the court's ruling."

The order, dated Thursday, expires in 14 days.

Any motion for preliminary injunction must be filed by 5 p.m. Monday, any responses must be filed by 5 p.m. Feb. 18, and any replies must be filed by 5 p.m. Feb. 21, the judge's order said.

If any such motion is filed, Goodwin wrote in the order, the court will conduct an evidentiary hearing at 9 a.m. Feb. 25 to determine if entry of a preliminary injunction is appropriate.

From Legal Newsline: Reach Jessica Karmasek by e-mail at jessica@legalnewsline.com.

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