Bayer Cropscience accused of cover-up in House hearings-- uses MTSA to hide behind national security

In the keynote address I gave last September to the TUV Rheinland Safety Symposium, I referred to the accident that had just occured at the Bayer CropScience facility in Institute West Virginia. I pointed out that despite thousands of man-hours of standards writing, training and compliance enforcement, accidents were still happening, and people were still being killed.

Little, apparently, did I know. On April 21, 2009, the House Committee on Energy and Commerce subcommittee on Oversight and Investigations held hearings into "Secrecy in the Response to Bayer's Fatal Chemical Plant Explosion."

Here is the opening statement from Rep. Bart Stupak (D- MI), in which he paints a pretty dismal picture of Bayer's response to what was essentially similar to the incident at Bhopal, India, which destroyed Union Carbide and killed several thousand people. If Congressman Stupak is correct, we haven't changed much.

From the statement:

Today, the Subcommittee is examining not only what actually happened, but what could have happened. About 80 feet from the blast site was a day tank that can store nearly 40,000 pounds of methyl isocyanate or MIC. MIC is the same chemical that killed thousands of people and sickened tens of thousands in 1984 after a release of the toxic chemical at a plant in Bhopal, India. The explosion at the Bayer plant in West Virginia caused a 2 ½ ton steel vessel containing methymyl to rupture and be violently propelled in a northeasterly direction, leaving a patch of destruction. Had the projectile headed south and struck the MIC tank, the Subcommittee today might be examining a catastrophe rivaling the Bhopal disaster. As it happened, the explosion caused shrapnel to damage the protective “blast blanket” around the MIC day tank.

So, basically, Bayer got lucky.

It gets worse, believe it or not:

Immediately after the explosion, local emergency responders tried to obtain crucial information from Bayer representatives, information that was essential to determine how best to protect the public and their own personnel from possible chemical contamination. For example, the emergency responders were trying to determine whether to order the community “shelter in place,” which is to stay in their homes with doors and windows closed. A “shelter in place” order must be announced soon after a chemical release in order to be effective. The fire department in Nitro, West Virginia, reported:

[W]e have a cloud of some type that is dark, it’s moving more towards Nitro, can you please try to get some information so you can tell us what it is?

Bayer rebuffed the emergency responders’ efforts to obtain information about the explosion. When the 911 dispatcher asked the company to confirm whether the explosion took place in the Larvin Unit, which contains toxic chemicals, Bayer responded:

No that’s all. I’m only allowed to tell you that we have an emergency in the plant.

At least six state and local emergency responders were denied entry to the plant to investigate the explosion. As Kent Carper, the President of the Kanawah County Commission wrote to Bayer a week after the explosion:

Metro 911 repeatedly asked for information and was refused. … This was a complete abdication of Bayer’s responsibility to your neighbors and our first responders, who were sent uninformed to an explosion because no one was “allowed” to inform us.

If that wasn't enough, it gets even worse.

The United States Chemical Safety and Hazard Board (CSB), an independent federal agency, is conducting an investigation with the goal of reporting to the public on the cause of the accident and recommending changes to prevent future accidents like this one. We will hear today from the chairman of the CSB on the Board’s preliminary findings.

For the first time during a CSB investigation, a company sought to limit CSB’s use of documents and information by labeling it “Sensitive Security Information” (SSI) under the Maritime Transportation Security Act. (Editor's note: boldface added for emphasis) Although the law is supposed to prevent the public release of information that might compromise national security, Bayer has now admitted that it began using this SSI label in part to prevent negative publicity and stymie public debate about the safety of its processes. William Buckner, the President and CEO of Bayer CropScience, says in his written testimony for today’s hearing that Bayer invoked SSI out of:
a desire to limit negative publicity generally about the company or the Institute facility, to avoid public pressure to reduce the volume of MIC that is produced and stored at Institute by changing to alternative technologies.

So, we have a company that admits it perverted a law designed to enhance national security to enable it to cover up details of an accident just so it could avoid publicity.

And if that isn't enough, read on!

Rep. Stupak asserts: Finally, the Committee’s investigation has uncovered several troubling facts that further raise concerns about an orchestrated effort by Bayer to shroud the explosion in secrecy:

• Bayer removed and destroyed the “blast blanket” that surrounded the MIC tank, pictured here with visible damage. The whereabouts of this important piece of evidence is now unknown.

• Air monitoring devices designed to determine whether MIC has been released into the air were not operational on the night of the explosion.

• Videocameras positioned to capture the site of explosion did not record the time period of the explosion because they had been disconnected from the recording unit.

Bayer’s pattern of secrecy raises serious questions not just about Bayer, but also about whether the law adequately protects the public’s right to have information about potential dangers their communities face and how those dangers might be minimized.

Here's the link to the subcommittee's hearing and here's the link to a streaming podcast.