More Information on the Bayer CropScience Controversy

The West Virginia Gazaette has been one of the lead publications in updating the public about the recent controversy where Bayer CropScience tried to limit the ability of the Chemical Safety Board (CSB) to publicly discuss their investigation of the August 2008 fatal fire and explosion at the facility outside of Institute, WV. On Monday their blogger Ken Ward, Jr. continued the papers coverage by posting a copy of the letter from the Coast Guard to the CSB explaining the results of their Sensitive Security Information (SSI) review of the upcoming CSB presentation. Coast Guard Concerns Reviewed According to the letter from the Coast Guard counsel (Commander S.N. Gilreath of the Office of Maritime and International Law) there were only two potential issues that they had identified; “a description of the time of day a chemical was transferred and the potential extent of the planned discussion concerning the construction standards of the blast shield”. Further discussion between the Coast Guard and CSB resulted in CSB removing the transfer time from the discussion. The Coast Guard also determined that the CSB discussion of the blast shield would not reveal any SSI so it would stay in the presentation. Ken readily accepted the security issue related to the blast shield construction, but took minor exception to the issue of the scheduled transfer times. He made the point that people living near the plant might want to know that time so they could consider being away from their neighborhood at that time; transfers being the most likely time for an accident to occur. I disagree with Ken. As I understand the site layout, the transfer line that they are talking about appears to be quite long and that line would probably be the easiest place to plan an attack; linear defenses are more difficult than point defenses in term of the resources required. This is what we, in my Army days, would have called EEFI (essential elements of friendly information); valuable information for enemy intelligence. CSB – Coast Guard Process From the tone of the letter it sounds as if the Coast Guard and CSB are working out a procedure for vetting security information in this type of accident investigation. I find particularly heartening the Coast Guard’s acknowledgement that “all CSB employees would be covered persons under 49 CFR § 1520.7 and authorized access to all SSI material related to CSB’s investigation”. The ending paragraph of the letter is also important. Commander Gilreath states that: “The Coast Guard looks forward to continuing to work together with you to protect SSI and the independence of CSB’s investigatory process (emphasis added).” He then goes on to suggest that the continuing to be developed process be formalized in an official Memorandum of Understanding (MOU) outlining the information vetting process. I would like to suggest that the MOU should also provide procedures for a classified (SSI) appendix to any CSB investigation report where CSB determined that security procedures (or lack there of) contributed to the cause or consequences of an accident under investigation. CSB and CFATS While they are at it, CSB should also start the development of a similar process with the DHS Office of Infrastructure Protection covering similar procedures for high-risk chemical facilities covered under CFATS regulations. It seems to me that it is inevitable that there will be a future investigation at a CFATS covered facility. Having a process for vetting potential security information prepared and understood in advance will go a long way to avoiding the confusion and charges of possible cover-up. CSB Disclosure and Congress The decision about how much security information may be allowed to be compromised in incidents like these is not an issue for the CSB, the Coast Guard, or DHS to make. Balancing the community right-to-know with legitimate security concerns is a matter for Congress to decide, preferably in advance. It is very easy for my fertile imagination to come up with potential scenarios where security procedures are the root cause of a significant incident at a high-risk or MTSA covered chemical facility that would be investigated by CSB. In such a case there will be an effectively irresolvable conflict between CSB and an agency of DHS. CSB will vote for public disclosure so that the problem can be examined and resolved in other potential situations while the security people argue that public disclosure will provide valuable and exploitable information to potential adversaries at those other vulnerable sites. Both agencies would be correctly interpreting their Congressional mandates; Congress needs to resolve this dilemma. A good first step will be at the hearing scheduled on April 21st by the House Subcommittee on Oversight and Investigations of the Energy and Commerce Committee. With their oversight responsibility for the Coast Guard this is the obvious first venue for the MTSA issue. Similarly the House Homeland Security Committee should start looking at the same thing for the CFATS issue, appropriate since they will begin marking up CFATS reauthorization legislation after the Easter Recess.