Sustained Outrage

MIC update: Industry lobby wants its say in case

Yesterday’s deadline for the court-appointed expert in the Bayer MIC case came and went, and apparently chemical engineer Sam Mannan did provide his report to the court. Bayer and the residents suing the company got copies.

But so far, U.S. District Judge Joseph R. Goodwin has not seen fit to add a copy of the report to the public file so the rest of the Kanawha Valley can see it. The judge has provided no public explanation for this decision. And the parties are concerned about not irritating the judge, so they aren’t about to release the report unless Judge Goodwin specifically authorizes them to do so.

Mannan is scheduled to testify in open court when the preliminary injunction hearing starts next Monday. Until then, it may be that the public will remain in the dark about his findings.

UPDATED: Judge Goodwin has still not made public his expert’s report on the MIC unit, but the judge did enter this order asking both sides to identify what documents in the case they want to conceal from the public, and explain why they believe those documents can be concealed.

There are two new developments in the case, though.

First, WVDEP Secretary Randy Huffman and his agency’s environmental advocate, longtime People Concerned About MIC leader Pam Nixon, have filed a motion to quash subpoenas in which the residents sought to compel them to appear and testify at the hearing.

In this motion, WVDEP general counsel Judith P. Thomas says that neither Randy nor Pam have first-hand knowledge about how their agency has responded to the U.S. Chemical Safety Board’s recommendations regarding Bayer CropScience’s Institute plant. Thomas says WVDEP put its homeland security director, Mike Dorsey, in charge of that issue, and the agency would produce Dorsey to testify at the hearing.

Second, the industry lobby group American Chemistry Council has filed this “friend of the court” brief arguing against Judge Goodwin issuing a longer-term court order blocking Bayer from resuming production of MIC.

Among other things, that group’s lawyers, Robert Hogan and Tom Heywood, throw back at Judge Goodwin the judge’s own words in tossing out of court most of a  case over DuPont Co.’s contamination of water supplies with the toxic chemical C8:

The potential effects of these chemicals on human health are of great public concern. Issues of institutional competence, however, caution against judicial involvement in regulatory affairs. Courts are designed to remediate, not regulate.