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National group weighs in on W.Va. chemical lawsuit

The Associated Press
Tuesday, March 15, 2011; 3:19 PM

CHARLESTON, W.Va. -- A national lobbying group for the chemical industry wants a federal judge in West Virginia to tread lightly in a lawsuit over a deadly chemical stored at a Bayer CropScience plant, arguing his rulings could have nationwide implications.

In a friend-of-the-court brief filed Monday, the American Chemistry Council urges U.S. District Judge Joseph Goodwin not to declare storage tanks of methyl isocyanate, or MIC, a public nuisance as some residents are demanding.

Because West Virginia is a major producer of raw chemicals for the rest of the industry, it says, such a ruling could cause widespread economic harm.

MIC is the same chemical that killed about 15,000 people in Bhopal, India, in 1984. Bayer CropScience's Institute facility is the only one in the nation that still stores large volumes of it.

Residents who live near the plant claim in their law suit that MIC poses "an imminent risk of a catastrophic industrial disaster" and should be declared a nuisance, but the industry claims that would be an inappropriate expansion of state law.

William DePaulo, an attorney for the residents, disagreed Tuesday with the industry group, saying the law in West Virginia supports the principal of anticipatory nuisance in virtually the same language as his lawsuit.

"There is no departure from the law of West Virginia," he said in an e-mail. "It is simply being applied to a novel set of facts. The law is the same."

Bayer wants to restart an MIC unit that has been shut down for renovations, but that's on hold while Goodwin hears the case and considers expert testimony that was to be submitted this week. The next hearing is set for March 21.

The council argues that residents worried about an MIC leak have no evidence to show they've been harmed by having the chemical in their community or that fear of a spill interferes with their quality of life. Even if they could, the council says, West Virginia's Supreme Court has previously ruled that even a "well-founded fear" is insufficient grounds for a nuisance label.

The group also insists the industry is already well regulated by a variety of federal bodies, including the Environmental Protection Agency, the Occupational Safety and Health Administration and the Department of Homeland Security.

West Virginia is home to 150 chemical and polymer manufacturing companies that employ 12,800 workers, the council says.

Although that's a fraction of the nearly 14,000 chemical businesses nationwide, West Virginia's companies "provide the raw materials critical to the function of virtually every other domestic industry, on both a regional and national level," the council says.

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