[Infowarrior] - Hiding Behind Terrorism Law

[Richard Forno]

(c/o Schnierblog)

March 10, 2009
     Updated March 12, 2009, 3:10 PM EDT

Safety Board Retreats

Citing antiterrorism law, Bayer pressures Chemical Safety Board to  
cancel public meeting on fatal accident

http://pubs.acs.org/cen/news/87/i11/8711news6.html

IN EARLY FEBRUARY, the Chemical Safety & Hazard Investigation Board  
(CSB) was deep into planning for a March 19 public meeting in  
Institute, W.Va. The meeting would give the board and community a  
chance to discuss events surrounding a deadly accident at the Bayer  
CropScience facility in the Kanawha Valley.

It would be similar to many meetings held in the past by the  
independent board and is part of CSB's process to investigate and find  
the root cause of chemical accidents. At that time, the board was  
about halfway through its investigation of the Aug. 28, 2008, fire and  
explosion at the Bayer plant that killed two workers and shut down the  
plant's production of Larvin, an insecticide, which has been reported  
in detail by West Virginia's Charleston Gazette.

CSB had intended to hear community concerns, gather more information  
on the accident, and inform residents of the status of its  
investigation. However, Bayer attorneys contacted CSB Chairman John  
Bresland and set up a Feb. 12 conference at the board's Washington,  
D.C., headquarters. There, they warned CSB not to reveal details of  
the accident or the facility's layout at the community meeting.

"This is where it gets a little strange," Bresland tells C&EN. To  
justify their request, Bayer attorneys cited the Maritime  
Transportation Security Act of 2002, an antiterrorism law that  
requires companies with plants on waterways to develop security plans  
to minimize the threat of a terrorist attack. Part of the plans can be  
designated as "sensitive security information" that can be  
disseminated only on a "need-to-know basis." Enforcement of the act is  
overseen by the Coast Guard and covers some 3,200 facilities,  
including 320 chemical and petrochemical facilities. Among those  
facilities is the Bayer plant.

Bayer argued that CSB's planned public meeting could reveal sensitive  
plant-specific security information, Bresland says, and therefore  
would be a violation of the maritime transportation law. The board got  
cold feet and canceled the meeting.

Bresland contends that CSB wasn't agreeing with Bayer, but says it was  
better to put off the meeting than to hold it and be unable to answer  
questions posed by the public.

The board then met with Coast Guard officials, Bresland says, and  
formally canceled the community meeting. The outcome of the Coast  
Guard meeting remains murky. It is unclear what role the Coast Guard  
might have in editing or restricting release of future CSB reports of  
accidents at covered facilities, the board says. "This could really  
cause difficulties for us," Bresland says. "We could find ourselves  
hemming and hawing about what actually happened in an accident."

Lisa K. Novak, a Coast Guard spokeswoman, tells C&EN that a review of  
CSB's reports is not being considered at this time and the Coast Guard  
will continue to work with CSB to reach a process by which  
"transparency can be sustained without undue compromise of national  
security information."

BRESLAND PREDICTS that this will be sorted out as CSB prepares and  
releases the Bayer report this summer. Among the 49 investigations  
that the board has completed, this is the first public meeting  
canceled for security reasons or due to company pressure. It raises  
questions about whether terrorism fears can be used to blunt CSB  
accident investigations. Although the board has no regulatory  
authority, its accident reports and videos have had wide influence on  
companies, encouraging them to improve their safety performance,  
eliminate dangerous practices, and better control use of toxic  
chemicals.

In this case, Bayer's history of use and storage of toxic reactive  
chemicals has galvanized community concern, says Maya Nye, a  
spokeswoman for People Concerned About MIC, a West Virginia community  
group made up of residents living near the Kanawha Valley plant. Nye  
and the group want Bayer to phase out its use of methyl isocyanate  
(MIC).

The community group selected its name when it was formed more than 20  
years ago, after the 1984 Union Carbide accident involving MIC at a  
plant in Bhopal, India, that killed some 5,000 people and injured  
200,000.

At that time, the facility in Institute was also owned by Union  
Carbide and was a sister to the Bhopal plant. Both stored large  
quantities of MIC.

Over the years, the Institute plant changed hands several times and in  
2002 was purchased by Bayer. Throughout this time, MIC was stored at  
the facility.

According to Bayer plant data filed with the Environmental Protection  
Agency, the company stores up to 1.4 million lb of chlorine and  
ammonia, 19,000 lb of phosgene, and 240,000 lb of MIC on-site. Of the  
total MIC stored, the data show that up to 40,000 lb can be stored for  
use in the same process line that exploded last year. Bayer's total  
storage of MIC at this 50-year-old plant greatly exceeds what was  
leaked at Bhopal, and the amount stored in the Larvin process is quite  
near Bhopal levels. That makes community residents, chemical  
engineers, emergency responders, and plant workers nervous.

A public CSB meeting, Nye says, would give the community information  
on the accident and what CSB has learned. "We want to know what is  
going on. Are we safe or not?" she says. Of particular concern, she  
adds, are the contents of a plume residents saw emerge from the  
accident site.

WITHIN WEEKS of the accident, Nye says her group organized a community  
forum in which local and federal officials participated, but  
representatives of Bayer did not appear; instead the company submitted  
a statement. Nye says Bayer has held one meeting to explain the  
accident, but it was closely controlled by a public relations firm  
hired by the company. She calls Bayer's secrecy "absolutely phenomenal."

In a letter to CSB, Nye and a dozen community groups urged the board  
to hold the public meeting. The letter charges that the postponement  
is a "political act" and represents a voluntary exit by CSB in the  
national debate to encourage chemical companies to shift to inherently  
safer design technologies.

Despite repeated requests, Bayer would not respond to direct questions  
about the accident from C&EN, nor would the company discuss its  
storage and use of MIC. Instead, Greg Coffee, a company spokesman,  
offered a statement, saying Bayer has and will continue to cooperate  
fully with CSB regarding the August accident at Institute.

"All decisions concerning the public meeting were made entirely by the  
CSB, and Bayer has no influence on the content or the timing of the  
board's activities," Coffee said. "The safe operation of the facility  
and the safety of our employees and the community remain our highest  
priority, and as such we intend to fully comply with all laws and  
regulations such as those administered by the federal Department of  
Homeland Security and the Coast Guard.

"MIC was not involved in the August incident, and inventory of the  
material is kept to a minimum, and the site contains multiple layers  
of safeguards to ensure safety and security of MIC," Coffee said.

The company also said it has worked with local emergency responders to  
improve emergency communications.
INSPECTORS Bresland (left) and John Vorderbrueggen, CSB supervisory  
investigator and leader of the Bayer investigation, survey an accident  
site. Chemical Safety Board
INSPECTORS Bresland (left) and John Vorderbrueggen, CSB supervisory  
investigator and leader of the Bayer investigation, survey an accident  
site.

Bresland explains that the accident occurred during a process start-up  
in a tank holding methomyl and a mix of other chemicals. Methomyl  
along with MIC is reformulated to make Larvin.

The CSB investigation, Bresland says, is examining MIC's use and the  
location of an MIC storage tank near the tank that exploded. "As it  
turns out," he says, "there wasn't a release from the MIC tank, but  
there could have been. So the question that comes up is, what was the  
potential for a release of MIC?"

CSB is also concerned with two other matters, Bresland adds. The first  
is finding the root cause of the explosion, which is part of the  
board's charge. The second issue is Bayer's unwillingness to supply  
specific accident information to emergency responders when the  
accident occurred.

The accident took place at about 10:30 PM, and a tape of the 911 calls  
between plant officials and emergency responders shows that a plant  
guard would not identify where in the facility the accident had  
occurred or which chemicals or processes were involved.

Even when calling for an ambulance, the guard refused to reveal the  
extent of the accident despite repeated questions from an exasperated  
county emergency services official. Eventually county officials called  
for shelter-in-place for several thousand people living near the plant.

As a result of Bayer's unwillingness to aid emergency responders, the  
West Virginia Legislature is considering a new law that would require  
companies to immediately report accident details to emergency  
responders. Heightening concern among the Institute community and area  
emergency responders alike is the storage of large quantities of MIC  
and fears of a Bhopal-like tragedy.

FOLLOWING THE Bhopal accident, many companies phased out MIC storage  
and shifted to a process that formulates and uses MIC immediately in  
other processes, notes Trevor Kletz, who is considered the father of  
inherently safer process design. After working as a manager and  
chemical engineer for 38 years with Imperial Chemical Industries, he  
now writes and lectures on the topic.

The goal for inherently safer design, Kletz notes, is to reduce stored  
quantities or eliminate use of toxic materials, such as phosgene,  
ethylene oxide, chlorine, or MIC.

Kletz explains that their reactive nature makes these chemicals  
invaluable as chemical production intermediates, but they should be  
created and used as quickly as possible.

"If you make an intermediate and immediately send it down the pipeline  
to another process, the worst that can happen is a break in a pipeline  
and that can be stopped by closing one valve. In the case of Bhopal,  
it would have been a leak measured in kilograms rather than tons," he  
says.

Since the 9/11 attacks, Kletz believes the case for eliminating  
storage and use of toxic materials is even stronger. "Now we are  
worried about terrorists being able to place a bomb in a factory where  
it can have maximum effect," he adds.

Kletz notes that toxic and reactive chemicals cannot always be  
eliminated—it depends on the particular production process. He is  
supported in this view by other chemical engineers interviewed by C&EN.

However, as Daniel A. Crowl, Herbert H. Dow Professor for Chemical  
Process Safety at Michigan Technological University, notes, "If  
companies didn't have this inventory, they wouldn't have the terrorist  
concern."

In many cases, Crowl says, on-site storage of large quantities of  
toxic chemicals is due to "sloppy inventory keeping."

"If a company runs a tight plant and has a rigorous and disciplined  
management system, it can literally produce MIC and use it up on the  
spot," Crowl says. "They could have done this in Bhopal. The  
technology has been around since the 1960s."

ONE COMPANY that has done so is DuPont. Within months of the Bhopal  
accident, DuPont ended on-site MIC storage at its facility in LaPorte,  
Texas, that makes the insecticide Lannate. Until that time, the DuPont  
plant had been buying MIC from Union Carbide's Institute plant and  
transporting the material to LaPorte for storage and use.

According to a DuPont report, its engineers developed and deployed an  
"inherently safe, point-of-use process" to create MIC based on air  
oxidation of monomethyl formamide (MMF), a nonhazardous material that  
was made in a DuPont facility in West Virginia and shipped to Texas.  
The MIC unit sits next to the Lannate unit, the engineers wrote, and  
the only MIC on-site is in a short transfer line. DuPont accomplished  
this shift within six months, including creating an MMF production  
line. For this effort, DuPont's team of chemical engineers received a  
2003 Industrial Innovation Award from the American Chemical Society.

CSB will push ahead with its accident report, Bresland says, and  
expects to issue it by summer. He is unsure what role the Coast Guard  
may play in reviewing it.

The accident has brought the Bayer plant onto the radar screen of at  
least one other federal agency. The Occupational Health & Safety  
Administration issued a $143,000 fine on Feb. 26 based on its  
examination of the conditions that led to the accident.

One day later, EPA fined Bayer $112,000 and announced a $900,000  
agreement to settle a wide range of violations that were revealed in  
inspections conducted between 1999 and 2001. An EPA spokeswoman said  
the agency had been negotiating with Bayer over the years and the  
timing of the fines and settlement was a "coincidence."

With reporting by Rochelle F. H. Bohaty.