Abbreviated Text of Citizens Complaint Against Bayer to Prevent MIC Restart

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Abbreviated Text of Citizens Complaint Against Bayer to Prevent MIC Restart

For their Complaint in this matter, Plaintiffs, by Counsel, state as follows:

 Preliminary Statement

1.           In  this  civil  action,  current  and  former  citizens  of,  and  workers  in,  Kanawha  County respectfully  request  that  this  Court  enter  an  order  barring  Bayer  CropScience,  L.  P.  (Bayer)  from resuming  or continuing  the production  of methyl isocyanate  (MIC) at Bayer’s plant in Institute, West Virginia, unless and until Bayer demonstrates to this Court, by clear and convincing evidence, that they, and the public regulatory agencies with jurisdiction over them, have complied with all of the recommendations   of  the  January   20,  2011  report   of  the  United   States  Chemical   Safety  Board (CSB)(EXHIBIT  “A”);  that  the  National  Academy  of Sciences  (NAS)  has  completed  its Congressionally mandated  study (EXHIBIT  “B) of the  inherent  safety issues presented by the production of  (MIC)  in  a major population center such as Kanawha County, West Virginia, and that the United States Occupation Safety  and  Health  Administration  (OSHA)  and  Environmental  Protection  Agency  (EPA)  certify  to  this Court that they have inspected Bayer’s facilities for compliance with applicable laws, including the recommendations of the CSB.


2.             MIC is the highly toxic chemical  which killed thousands  of citizens of Bhopal, India in 1984 from an industrial accident which was virtually identical in all material respects ---  other than the number of people killed  ---    to the explosion in August 2008 at Bayer’s Institute, West Virginia which is known to have killed two workers, and released toxic chemicals requiring 40,000 citizens of Kanawha County to shelter in place.   Bayer’s Offsite Consequences Analysis (OCA), on file at the headquarters of the United States Environmental Protection Agency (EPA) in Washington, DC (not available for viewing anywhere in the state of West Virginia, and barred by federal statute from mechanical reproduction but not handwritten copying and subsequent typing  describes the area and population at risk the “vulnerability zone --    from a worst case scenario chemical spill as including 300,912  people  in  a  25mile  radius  of  Institute,  West  Virginia  (EXHIBIT  “D”),  virtually  the  entire metropolitan area of Kanawha County, West Virginia and 100% of the largest city in the state, the capital at Charleston, West Virginia.

(Parties and Venue Omitted)

 IV.        Statement of Facts



7.           On August 28, 2008, at about 10:35 p.m., a runaway chemical reaction inside a 4,500 gallon  pressure  vessel  known  as  a  residue  treater in  the  methomyl   unit  at  Bayer’s  pesticide manufacturing plant at Institute, West Virginia caused the 5,700 pound, stainless steel vessel to explode violently, launching the 2 ½ ton residue treater 50 feet into the air, releasing shrapnel randomly throughout  the  methomyl  unit  and  destroying  everything  in  the  vessel’s  pathe.    Highly  flammable solvent sprayed from the vessel and immediately ignited, causing an intense fire that burned for more than 4 hours, sending flames 200 feet in the air, and causing windows to break in a 7mile radius. One Bayer employee  died immediately  as a result of blunt force trauma,  either from being struck by the vessel itself or the shrapnel released at the time of the explosion (this worker later was found to have  a toxic  level  of  cyanide  in  his  blood  which  has  not  been  explained .      


A  second  Bayer employee died 41 days later at the Western Pennsylvania Burn Center in Pittsburgh, Pennsylvania. Six volunteer firefighters who assisted in the unit fire suppression activities and two contractors working at the  facility  were  treated  for  possible  toxic  chemical  exposure.  The  fire  was  contained  inside  the MethomylLarvin insecticide unit by the Bayer CropScience fire brigade with mutual aid assistance from local  volunteer  and  municipal  fire  departments.   The  incident  occurred  during  the  restart  of  the methomyl unit after an extended outage to upgrade the control system and replace the original residue treater vessel  -­‐-­‐    circumstances which mirror in virtually all material respects Bayer’s currently planned restart of the Bayer facility later this month, and possibly as early as this week.




8.           In  the  late  evening   of  August  8,  2008,  the  KanawhaPutnam   County   Emergency Management Director   to whom Bayer repeatedly through the hours following the explosion refused to supply the most basic information necessary (EXHIBIT “F”)  to make decisions affecting public safety, in  violation  of  mandatory  reporting  duties  (EXHIBIT  “R”)  -­‐-­‐   advised  more  than  40,000  residents, including the resident students at the West Virginia State University adjacent to the facility, to shelter-­‐ inplace for more than three hours as a precaution. The fire and drifting smoke forced the state police and local law enforcement authorities to close roads near the facility and the interstate highway, which disrupted traffic for hours.


9.           The  investigation  team  of  the  United  States  Chemical  Safety  Board  (CSB),  a  non-­‐ regulatory  agency modeled on the highly regarded National Transportation  Safety Board, determined that  the  runaway  chemical  reaction  and  loss  of  containment  of  the  flammable  and  toxic  chemicals resulted from deviation from the written startup procedures, including bypassing critical safety devices intended  to prevent  such a condition.  Other contributing  factors  included  an inadequate  prestartup safety  review;  inadequate   operator   training   on  the  newly  installed   control  system;  unevaluated temporary  changes,  malfunctioning  or  missing  equipment,  misaligned  valves,  and  bypassed  critical safety devices; and insufficient technical expertise available in the control room during the restart.




10.        Poor communications during the emergency between the Bayer CropScience incident command and the local emergency response agency  -­--   a direct result of Bayer’s flagrant disregard of the most basic National Incident Management System (NIMS) procedures adopted nationwide after the September 11, 2001 attack on the World Trade Center in New York -­--  confused emergency response organizations and delayed public announcements on actions that should be taken to minimize exposure risk. Although Bayer reported that “no toxic chemicals were released because they were consumed in the intense fires, the CSB later confirmed that the only air monitors suitably placed near the unit to detect toxic chemicals were, in fact, not operational at the time of the incident. In short, no reliable data or  analytical  methods  were  available  to  determine  what  chemicals  were  released,  or  predict  any exposure concentrations, both of which are critical to public safety and health.


11.         The methomyl unit used the highly toxic chemical, methyl isocyanate (MIC), in a series of complex chemical reactions to produce methomyl, a dry chemical used to make the pesticide, Larvin.  MIC is manufactured in a separate production unit at the facility and stored in large underground pressure vessels. Liquid MIC was pumped to a “day tank pressure vessel near the MethomylLarvin unit, which provided the daily production quantity of MIC for the methomyl unit and the carbofuran unit, which is about 200 feet west of the methomyl unit. Fortuitously, given the random shrapnel pattern and uncharted flight path for the residue treater, the MIC storage tank adjacent to the methomyl  unit, and the MIC transfer piping between  the production  unit and the manufacturing units, escaped damage.

(ITEMS 12, 13, 14 OMITTED)


15.         Toxic chemicals were released into the atmosphere between 1980 and 1985 as follows61 MIC leaks, 107 phosgene leaks, and 22 leaks of both MIC and phosgene all from the current Bayer facility,  all  prior  to  the  August  28,  2008,  and  all  without  reporting  the  release  as  required  by  law


Other violations of applicable laws include the following:


(a)          In December 2007, thiodicarb, a toxic chemical used as an insecticide and sold under the trade  name  Larvin,  leaked  into  the  air  and  could  be  smelled  by  residents  throughout  the Kanawha Valley.  In violation of applicable NIMS protocols, Bayer took several hours to notify emergency responders of the nature of the spill, despite hundreds of people calling into Metro 911 about the odor and a visible haze over the plant.  Thiodicarb is extremely toxic and has been banned  in  the  European  Union.    DEP  issued  a  citation  against  Bayer  for  this  air  pollution violation.



(b)          In  2008  Bayer  released  but  did  not  report  MIC  in  volumes  it  contended  were  not reportable, but which the KCEMS Director stated should have been reported.


(c)          State  DEP  inspectors  recently  issued  citations  to  Bayer  for  mismanagement  of  the underground  MIC storage tank, discovered during a June 2009 inspection for violations dating back to 2003. The citations concern corrosion protection systems installed on the MIC tank.  The contractors  that  installed  the  cathodic  protection  system,  meant  to control  corrosion  of the tanks metal surface, did not have proper certification.   Furthermore, even though tests that subsequent uncertified workers performed showed that the system was not working properly, Bayer took no action 


(d)          Bayer  entered  into a Consent  Decree  with  DEP regarding  missing  Title  V (air permit)

records from 2007 to 2009.