Goodwin extends restraining order against Bayer

By Jessica M. Karmasek | Feb 24, 2011

Goodwin CHARLESTON -- A federal judge has extended a temporary restraining order against Bayer CropScience until March 28.


CHARLESTON -- A federal judge has extended a temporary restraining order against Bayer CropScience until March 28.

U.S. District Judge Joseph R. Goodwin, in his five-page order filed Wednesday, is blocking the company from restarting production of the potentially dangerous methyl isocyanate chemical at its Institute plant.

Goodwin also has rescheduled a hearing to look at the possibility of a longer injunction for 9 a.m. March 21. The hearing was originally scheduled for Friday.

The judge said he wants to hear from a court-appointed expert before deciding whether the company should be allowed to resume production of MIC, according to his order.

Sam Mannan, a chemical engineer from Texas A&M University, was appointed to do the job. Goodwin, in his order Wednesday, has ordered Mannan to provide the court and all parties with a full written report by March 14.

His duties, according to Goodwin's order, include:

* "Physically inspect those portions of the Bayer CropScience (Bayer) facility in Institute, West Virginia, that he deems relevant to this matter;"

* "Physically inspect the documents and electronically stored information that he deems relevant to this matter; and"

* "Perform any other necessary inspection or investigation he deems necessary."

Last week, lawyers for Bayer tried to convince Goodwin that the Institute plant is safe and that its MIC unit should be allowed to resume production.

On Friday, the lawyers gave the judge copies of two reports by a Bayer consultant who, they said, concluded the unit met federal requirements.

However, the same day, the U.S. Chemical Safety Board wrote to the federal Occupational Safety and Health Administration and the U.S. Environmental Protection Agency, advising them to conduct more thorough inspections of the unit before it is restarted.

The board's chairman warned in the letters that records in the lawsuit indicated the company hadn't completed a number of safety precautions.

Goodwin filed his original temporary restraining order prohibiting Bayer from making the MIC chemical on Feb. 10.

The judge issued his three-page order at the request of the 16 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."

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 last week.

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

From Legal Newsline: Reach Jessica Karmasek by e-mail at

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