CSB Asked to Look at IST for Bayer Crop Science

According to reports on WashingtonPost.com and WVGazette.com Sen. Rockefeller (D, WV) has joined Chairman Waxman (D, CA) of the House Energy and Commerce Committee in sending a formal letter to the Chairman of the Chemical Safety Board (CSB) requesting that the board look at inherently safer technology (IST) alternatives to the bulk storage of MIC at the Bayer CropScience facility outside of Institute, WV. Both of these articles, and an accompanying blog by Ken Ward at the Gazette, do a good job of looking at the political reasons behind the letter that was also signed by two other key members of Waxman’s committee; Stupak (D, MI) and Markey (D, NY), both sub-committee chairs. The Post article notes that Chairman Bresland told their reporter that he had “agreed with the key concepts in the letter, and in fact had already asked Bayer CropScience for studies it had done on alternatives.” Thanks to Bayer’s feeble and short lived attempts to hide information from the CSB investigators about the fatal accident last August, their worst fears have been realized; the CSB investigation will now take a detailed look at the MIC storage situation that was only marginally involved in the actual incident. Bayer can take small comfort in the fact that the CSB has no authority to direct or require Bayer or any agency to do anything. Their congressional mandate only allows CSB to make recommendations (recommendations that have been routinely ignored by EPA and OSHA; but that is another story). So, even if CSB provides a detailed report providing a technically and financially feasible alternative to bulk storage of MIC, there is currently no way to compel Bayer to implement that IST alternative. The important word in that last sentence is ‘currently’. CFATS Reauthorization Implications Waxman’s committee and the House Homeland Security Committee are supposed to be working on mark-ups of a re-authorization bill for the Chemical Facility Anti-Terrorism Standards (CFATS) program. While I have not seen a copy of the staff draft, I am almost certain that it contains provisions for DHS to be able to require at least some high-risk chemical facilities to implement ‘technically and financially feasible’ IST projects to reduce the potential risk from a terrorist attack. The Homeland Security Committee included this type of IST provisions in their HR 5577 bill last year and Waxman, Stupak and Markey made very pointed IST comments in the recent Bayer Crop Science Hearing. The politically important signature on this letter is that of Sen. Rockefeller. He has long been a supporter of the chemical industry in West Virginia (it is a major employer in that state) and might have been counted upon to vote against a CFATS reauthorization bill that contained strong IST language, or at least to not vote for cloture on such a bill. His anger at Bayer may be strong enough to change that vote. A finding by the CSB that Bayer has been avoiding a technically and financially feasible alternative to fatten their profit margin would go a long way to making Sen. Rockefeller an IST supporter. If the CSB report comes out before the CFATS reauthorization vote in the Senate (a long shot, CSB takes their time to prepare a careful and thoughtful report) IST proponents will certainly use that report as a major part of their argument in support of IST provisions in the bill. A strongly worded CSB recommendation to implement some sort of IST to reduce MIC storage will go along way to increasing the probability of passing a CFATS reauthorization bill with strong IST provisions. Independent Evaluation of IST The chemical industry has been actively working to avoid having any kind of IST provision in the CFATS reauthorization bill. They take the stance that DHS has neither the manpower nor technical expertise required to review the technical and business data necessary to make the determination that an IST project is technically and financially feasible. This is an argument that makes a great deal of sense to industry supporters in Congress. In an earlier blog I recommended that the National Academy of Sciences establish a Inherently Safer Technology Process Review Board to independently review IST data provided by the highest risk chemical facilities that have toxic release COI. Some would argue that the CSB already exists and could perform that review. Unfortunately, the CSB is currently understaffed for its existing mission of accident investigation. Extending it’s mandate to include general IST evaluations would require an extensive increase in its manpower and budget. One thing is certain though; the current IST review requested by Waxman and Rockefeller will serve as a blue print for how such a review should be done. I think that it will be a beneficial exercise regardless of the outcome. IST proponents will use it as an example (if CSB does recommend an alternative strategy) of why legislation should give the DHS Secretary the authority to mandate IST implementation. Industry, on the other hand will be able to point to even a positive CSB recommendation for IST implementation as an example of how complex a decision this can be and how much effort must be put into a legitimate IST review.