In their suit, the residents repeatedly cite the findings of the U.S. Chemical Safety Board's investigation of the August 2008 explosion and fire that killed two workers in Bayer's Methomyl-Larvin pesticide unit. CSB investigators found, among other things, that the explosion could have damaged an MIC storage tank about 75 feet away, causing a disaster that would have rivaled Bhopal.
After that incident, Bayer announced in August 2009 that it would cut its MIC inventory by about 80 percent. And last month, the company announced it was eliminating all MIC from the plant by mid-2012, citing a corporate restructuring and an agreement with the U.S. Environmental Protection to stop making the pesticide aldicarb.
The MIC production unit at issue in the new lawsuit is on the other side of the plant from the Methomyl-Larvin unit, but the residents cite a "long history of incompetence and recklessness" as proof that the facility is a nuisance to the public.
In their response, Bayer lawyers say the company "has successfully manufactured MIC for over 40 years at the Institute plant.
"Bayer manufactures MIC pursuant to law and permits issued by the West Virginia Department of Environmental Protection," the Bayer response said. "MIC is a necessary chemical used in the manufacturing of pesticides which are essential for crop production throughout the United States and elsewhere."
Bayer lawyers said granting the injunction would hasten the elimination of 220 jobs at the Institute plant as well as another 80 positions at a related plant in Georgia.
Also, Bayer's lawyers said that the residents' request for a temporary restraining order failed to cite a new legal standard that makes it more difficult to obtain such court orders.
Generally, lawyers seeking temporary restraining orders need to show they are likely to win the case on its merits, that their clients would suffer irreparable harm if the order were not issued, and that issuing the order is in the public interest.
But the new legal standard, Bayer's lawyers said, requires the residents to show that the harm they seek to prevent is "highly probable or reasonably certain" to occur. Under earlier court standards, the residents could have simply tried to prove the "possibility" of harm if the damage they were seeking to stop was especially grave or serious.
Reach Ken Ward Jr. at kw...@wvgazette.com or 304-348-1702.