Two employees died in a chemical plant explosion last August in West Virginia, and now Bayer is invoking a federal terrorism law to prevent full disclosure of the investigation into the accident. -DB
The New York Times
March 29, 2009
By Sean D. Himill
INSTITUTE, W.Va. — Last August, an explosion tore through the Bayer CropScience chemical plant here, killing two employees and raising the fears of residents in what has long been known as Chemical Valley.
Now, a federal agency wants to hold a public hearing to lay out its preliminary findings about what caused the accident. But Bayer, citing a terrorism-related federal law, is trying to limit what the agency can disclose.
Bayer contends that because it has a dock for barge shipments on the adjacent Kanawha River, its entire 400-acre site qualifies under the 2002 federal Maritime Transportation Security Act. It has asked the Coast Guard, which has jurisdiction under the act, to review the public release of “sensitive security information.”
The agency that wants to hold the hearing, the Chemical Safety and Hazard Investigation Board, says it is the first time in its 11 years of operation that a company has tried to limit what could be discussed publicly, and the first time the maritime act has been invoked this way.
“I don’t like the idea that if we went to a meeting in West Virginia and someone asked a question, we’d have to say, ‘Sorry, we can’t talk about it,’ ” said John S. Bresland, the board chairman. “We don’t think any other agency should have the right to tell us what we can put in our reports.”
In particular, Bayer appears to want to limit discussion about the potential hazards posed by a chemical produced and used by the plant — methyl isocyanate, the same chemical responsible for the deaths of thousands of people in Bhopal, India, after a Union Carbide plant leaked there in 1984. Until 1986, Union Carbide owned the plant here, which was considered the sister plant.
The chemical safety board believes that if Bayer is successful, it will set a precedent for other companies to limit the release of information.
The board was modeled on the National Transportation Safety Board. And like the transportation board, it has no regulatory power, so it cannot fine a company or order changes in operations. Its power comes from revealing its findings and making recommendations.
“We have a bully pulpit,” Mr. Bresland said, “and we use it by going out in public and talking about what we’ve found.”
After Bayer invoked the maritime act in February, the chemical safety board canceled a March 19 public meeting in West Virginia while it sought to resolve the dispute. It has tentatively rescheduled the hearing for April 23 while awaiting the Coast Guard’s decision, which it could appeal to the Transportation Security Administration.
Bayer’s action also caught the attention of Representative Bart Stupak, Democrat of Michigan and chairman of the House Subcommittee on Oversight and Investigations. Mr. Stupak scheduled an April 21 hearing to review the company’s action, saying, “We are concerned about the way that Bayer may be misusing terrorism laws to suppress information related to the incident.”
Bayer believes it has a strong case for suppressing public discussion of its operations in West Virginia, said a company spokesman, Greg Coffey.
“In security matters, the site comes under the jurisdiction of the Coast Guard,” Mr. Coffey said. “We have and will continue to comply with the spirit of the regulations” of the maritime act.
And Bayer appears to have the support of the Coast Guard. A spokesman, Lt. Cmdr. Chris O’Neil, said that the service considered the entire plant, not just the dock, a “regulated facility,” and that “it might only be prudent to protect that information” Bayer does not want discussed.
But Mr. Bresland said the chemical board contended that the maritime act applied only to transportation of the chemicals, not the onsite storage and processes. Methyl isocyanate, a chemical used in the production of carbamate pesticides, was not directly involved in the August explosion, which the company has said was caused by human error in a unit that contained the less toxic chemical methomyl.
But an above-ground storage tank that can hold up to 40,000 pounds of methyl isocyanate was just 50 feet to 75 feet from the blast area, and a much larger underground tank in a different part of the plant site can store an additional 200,000 pounds. In the Bhopal disaster, 50,000 to 90,000 pounds of the chemical leaked.
It is the onsite storage of the methyl isocyanate (or MIC) that has long concerned West Virginia environmentalists. After the Bhopal disaster, professors at West Virginia State University, which is next to the plant, and residents started People Concerned About MIC to monitor the plant.
“One of the ironies is that in the 1980s, one of the demands we had was that Carbide should act more like Bayer did in Germany and not store MIC at the plant and just make it when it needed to use it,” said Prof. Gerald E. Beller, chairman of the department of political science at the university, who helped start the local group.
There are many other issues related to the accident that the chemical safety board wants to talk about, including the amount of overtime Bayer employees had been working before the accident; how poor communications were between the plant and outside emergency crews the night of the accident; and how one of the two men who died, Barry Withrow, had a toxic level of cyanide in his blood that no one has been able to explain.
But a large part of what the board wants to talk about is the risks posed by the tanks of methyl isocyanate. If the explosion had damaged the smaller above-ground tank in particular, “the consequences of the accident might have been worse,” Mr. Bresland said.
Copyright 2009 The New York Times Company