"Bayer has a very checkered history on safety," DePaulo told the judge. DePaulo reminded Goodwin that Bayer CEO William Buckner admitted during a congressional hearing that Bayer officials tried to use homeland security regulations to avoid embarrassing disclosures about the August 2008 incident and prevent debate about the plant's MIC stockpile.
"How do we know that Bayer is telling the truth?" DePaulo asked. "The court can't take things at face value."
Michael Fisher, a lawyer for Bayer, held up a copy of a state Department of Environmental Protection air pollution permit for the Bayer MIC unit, to emphasize his argument that the company has all of its required governmental approvals for the operation.
Goodwin asked Fisher, "Who at the DEP in West Virginia has any clue about what is safe or isn't safe with MIC production?" Fisher said he couldn't answer that question, but that DEP was a competent agency that had granted the company a permit.
The judge asked Fisher if the MIC unit had been inspected by anyone from any government agency prior to the company beginning the process of restarting MIC production. "No, your honor," Fisher responded.
Fisher also told Goodwin that he had "overstated" the potential economic impacts when he said in a legal brief that a temporary restraining order would "immediately" cost 300 workers in Institute and a related plant in Georgia their jobs. Fisher said the temporary order would not cost workers their jobs, but that a lengthier court order would likely do so.
DePaulo pointed out that those jobs are already scheduled to be eliminated by mid-2012 as part of Bayer's announced plan to stop making aldicarb. "They've already announced this business is going away," DePaulo said.
Fisher also repeated several times during Thursday's hearing Bayer's previous statement that "MIC was not involved in" the August 2008 incident. Chemical Safety Board investigators have said that statement is probably inaccurate and that Bayer can't prove it because key MIC monitors were not functioning the night of the explosion.
Residents argued in their lawsuit that restarting the unit continued a private and public nuisance, creating the risk of a disaster and leaving community members afraid of a major leak or other accident.
Much of Thursday's hearing consisted of Goodwin questioning lawyers for both sides about previous court rulings in other cases that defined the boundaries of nuisance law in West Virginia, and about whether the residents could meet the test for a temporary injunction until a full hearing could be held.
In his written order, Goodwin said that, based on the limited evidence currently before him, the residents were likely to win. Goodwin said West Virginia nuisance law is "flexible" and "adaptable to a wide variety of factual situations." The judge also said state courts have "acknowledged the authority for courts to enjoin prospective or anticipatory nuisance."
Goodwin also ordered the residents to post a $10,000 bond, under federal court rules allowing bonds to be required to pay the costs and damages sustained by any party found to have been wrongly enjoined or restrained.
Reach Ken Ward Jr. at kw...@wvgazette.com or 304-348-1702.