Bayer v CSB Hearing: Detailed Look

Yesterday the House Subcommittee on Oversight and Investigations (Energy and Commerce Committee) completed their hearing on the Bayer CropScience fatal accident of August 2008. Brought about because of the public brouhaha surrounding proposed restrictions on the CSB public reporting on the incident, the Committee Staff did an extensive background investigation in support of the hearing. While I reported yesterday on my impressions about the 3 hour hearing, today I would like to take a little closer look at the prepared testimony. The Incident I’m not going to go into any great detail about the incident itself. CSB Chairman John Bresland provided a reasonable summary of the incident in his testimony, but a better presentation is in the works. On Thursday the CSB is scheduled to provide an extensive public report on the preliminary findings about the incident at a public meeting in Institute, WV. The incident took place in the residue treatment equipment in the Methomyl/Larvin unit at the Bayer CropScience plant. A runaway reaction during the thermal degradation of residual methomyl in the recovered solvent stream from the process resulted in a rapid increase in pressure in the pressure vessel. While venting was attempted the pressure build up was too quick and too much. The vessel catastrophically failed and became a projectile, flying through production equipment. The resulting destruction produced chemical releases of a wide variety of chemical feed stocks and the fire in the unit. Two employees were killed; one died the night of the incident and one a month later from the burns received that night. A number of people, including fire fighters and train crew members, reported apparent chemical exposure symptoms and sought medical treatment. Incident Reporting One of the concerns in the local community was the lack of information provided to local emergency responders during the incident. Testimony from the St. Albens, WV Police Chief, the West Virginia Department of Environmental Protection (WV DEP), and an environmental advocate from the WV DEP provide the gruesome details about the confusion and lack of information from that evening. Of particular concern is that all three witnesses reported under questioning that they had still not been informed of the chemicals potentially released into their community until they heard the testimony of Chairman Bresland yesterday. The testimony of William Buckner (Bayer CropScience President and CEO) seems to contradict many of the claims made in the testimony of local witnesses. He claims that while there was an apparent ‘break down in communication’, Bayer provided all relevant information to the local 911. Still he vowed (pg 2):

“In addition to taking steps to prevent such an incident from happening again, since the incident we have taken several specific actions to improve our emergency communications. For example, we have implemented new procedures for communicating with our region’s emergency response center, Metro 911, installed dedicated methods of communication with Metro 911, hired a new emergency services leader to work with Metro 911 and other first responders in the region, and provided new real-time chemical monitoring technology to Metro 911.”

Both the Committee Staff report and the testimony of CSB Chairman Bresland indicate that transcripts of the 911 Center from that evening supports the descriptions provided by local witnesses not Buckner. For example the staff memo states that evidence “obtained by the Committee demonstrates that Bayer engaged in a campaign of secrecy by withholding critical information from local, county, and state emergency responders” (pg 2). I would expect additional details to be provided in the CSB presentation on Thursday. Security Sensitive Information One of the surprising things to come out of the Bayer testimony was that they considered denying the CSB access to documents about methyl isocyanate (MIC) operations by classifying them as SSI. Buckner’s written testimony (pgs 6-7) acknowledges that:

“CropScience acknowledges that in January 2009, there were some in company management who initially thought that the Maritime Transportation Security Act of 2002, 46 U.S.C. Chapter 701 (“the Act”), could be used to refuse to provide information to the CSB about issues regarding Methyl isocyanate (“MIC”) beyond those related to the MIC day storage tank in the unit involved in the incident. We admit that.”

After ‘further review’ of the MTSA regulations CropScience realized that the CSB personnel were ‘covered personnel’ and could not be denied access to SSI. They then tried to limit public discussion of MIC issues by classifying 2,000 pages of documents as SSI. This is where the public discussion of the SSI controversy began. Under questioning Buckner noted that they finally turned those documents over to outside attorneys for classification determination; only 12% ended up classified as SSI. Rear Admiral Watson noted under questioning that the Coast Guard had not reviewed the classification of those remaining 12% to see if they were properly classified. He did explain that CropScience was responsible under the SSI regulations for the proper classification of documents; but there were only sanctions for improper disclosure not over classification. One committee member (I missed the name) opined that this provided an incentive for companies to over classify. CSB Chairman Bresland was very upset about the effect these SSI rules could have on his agency. He agreed that the current problem, the presentation for Thursday’s public meeting, has been resolved. The larger issue remains to be resolved, according to his testimony (pg 11):

“Mr. Chairman, it requires little imagination to see the potential for misuse if such an interpretation prevails. In the future, companies may be able to delay our investigations for years while complex claims and counterclaims under MTSA or CFATS are painstakingly resolved between the CSB and various homeland security agencies. Public confidence in the independence, thoroughness, and efficiency of our critical life-saving work may be undermined.”

Mr. Buckner’s written testimony addressed the SSI issue. He stated (pg 9):

“As our experience demonstrates, there is a need for further education and guidance regarding the interplay between the SSI regulations and CSB investigations. We do believe that whatever tension may exist between CSB’s desire to inform the public and the Coast Guard’s mandate to protect homeland security, these two important federal interests can be reconciled. We look forward to the ongoing dialogue between these two agencies and their efforts to balance these important federal interests.”

I’ll be looking at this issue more in later blogs. Inherently Safer Technology Anyone that hoped that the MIC process would not be an issue in this hearing was quickly disappointed. In his opening statement Subcommittee Chair Stupak explained: “We will also explore ways for companies to employ safer technologies [emphasis added] to protect their communities so that tragedies like this one do not happen again” (pg 3). Opening statements by other committee members also addressed this issue. Chairman Waxman’s statement (pg 2) was most emphatic:

“Twenty-five years after the catastrophe in India, I think it's finally time to ask whether it makes sense to allow Bayer to continue producing and storing such massive amounts of this highly toxic chemical.”

CropScience obviously realized that this issue would be addressed in the hearing. Mr Buckner’s testimony (pg 11) explained their position on the MIC IST issue:

“CropScience, continuing the work previously done at the Institute site, has invested significant time, thought, effort, and financial support into ensuring that we employ robust and safe production strategies for our various production units that use MIC. We have examined alternative technologies for MIC and determined that our process is as safe as those other technologies.”

Under direct questioning the facility manager reiterated this position. He noted that to eliminate the large storage capability for MIC at the West Virginia facility, CropScience would have to establish four separate MIC production units. He also noted that the frequent start ups and shutdowns of those units would increase the risk of process accidents since start ups were the most dangerous times in any of these processes. Chairman Stupak charged CSB Chairman Bresland with specifically addressing the inherently safer technology issue in the CSB final report. It was an interesting hearing. As I stated yesterday, I think that CropScience came off looking as bad as any of the activists in West Virginia have claimed. They have a lot of PR work to do if they intend to convince anyone that they are good corporate citizens. Their performance at the Thursday public meeting will be under close scrutiny.