All documents published by the House Committee

April 21, 2009, The Charleston Gazette

Congressional report: Bayer blast 'could have eclipsed' Bhopal

PR firm suggests 'marginalizing' citizens' group, Gazette

The Kanawha Valley may have narrowly escaped a chemical plant catastrophe that could have surpassed the 1984 Bhopal disaster, according to a report released today by congressional investigators.
The August 2008 explosion at the Bayer CropScience Institute plant turned a 2 1/2-ton chemical vessel into a "dangerous projectile" that could have destroyed a nearby tank of deadly methyl isocyanate, according to the report by House Energy and Commerce Subcommittee staff.
Committee investigators found that the tank that exploded -- called a residue treater -- "rocketed 50 feet into the air, twisting steel beams, severing pipes, and destroying virtually everything in its path."
The Aug. 28 explosion "came dangerously close" to compromising an MIC storage tank 80 feet away, congressional investigators concluded. Had the residue treater hit the MIC tank, "the consequences could have eclipsed the 1984 disaster in India."
"Documents obtained by the committee raise serious questions about the vulnerabilities of Bayer's inventory of methyl isocyanate (MIC) during the 2008 explosion and about MIC monitoring systems that were out of service at the time of the explosion," the committee report said. "The documents also raise questions about whether Bayer has adequately considered the feasibility of reducing its MIC stockpile or switching to inherently safer technologies."
John Bresland, chairman of the federal Chemical Safety Board, told lawmakers his agency's investigators found "significant lapses" in plant safety led to the runaway reaction in the residue treater in Bayer's Methomyl/Larvin pesticide unit.
The explosion occurred during the restarting of the unit after a long maintenance shutdown period, Besland said. Equipment was replaced, and a completely new computer control system was installed -- but workers were not adequately trained on it prior to the startup, Bresland said.
In addition, an undersized heating system for the vessel, long known to Bayer management personnel, required operators to deviate from written procedures, Bresland said. To deal with the inadequate heater, operators bypassed critical safety interlocks intended to prevent the flow of Methomyl into the vessel until it reached a minimum temperature.
"The practice of bypassing the safety interlocks was longstanding and was known to Bayer managers and engineers," Bresland said. "But bypassing the safety interlocks made it much more likely to overcharge the vessel with Methomyl, which could lead to a catastrophic runaway reaction."
Two Bayer workers were killed in the incident, and committee investigators revealed today that eight other people, including six emergency responders, later reported symptoms of chemical exposure.
Thousands of Kanawha Valley residents were forced to take shelter in their homes and, as committee investigators confirmed, Bayer took great pains to avoid giving plant neighbors any information -- both during the event and in the nearly eight months since.
"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; by restricting the use of information provided to federal investigators; by undermining news outlets and citizen groups concerned about the dangers posed by Bayer's activities; and by providing inaccurate and misleading information to the public," the committee said in a 20-page report released at the start of a hearing this afternoon.
The report cited "serious questions" about "Bayer's handling of key evidence related to the explosion:

For example, the committee obtained a memo in which officials from Ann Green Communications suggested how plant manager Nick Crosby should deal with local citizen groups and journalists.
"Our goal with People Concerned About MIC should be to marginalize them," the memo said. "Take a similar approach to The Charleston Gazette. For as many years as it has been in print, the Gazette has chosen to be anti-business and champion environmental activists' causes. Marginalize its effectiveness."
In prepared testimony, Bayer CropScience CEO William Buckner conceded that his company used chemical plant security regulations to try to hide information about the incident and avoid a public debate over the large amounts of MIC stored at the Institute plant.
"There were, of course, some business reasons that also motivated our desire for confidentiality," Buckner said. "These included 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, or even calls by some in our community to eliminate MIC production entirely." By Ken Ward Jr.

more Info on the Institute blast

Editorial, New York Times, May 17, 2009

Chemical Plant Safety

There was a major explosion last year at a Bayer chemical plant in West Virginia, in which two employees were killed. Congressional investigators reported in April that the blast could have been far more deadly had it gone in a different direction. These revelations provide more evidence — as if more were needed — that the nation needs a tough chemical plant security law, this year.
The explosion last August sent a fireball into the air. The staff of the House Energy and Commerce Committee reported that the blast nearly compromised a nearby tank filled with several tons of methyl isocyanate, the same toxic chemical that leaked from the Union Carbide plant in Bhopal, India, in 1984, killing thousands of people. If things had gone badly, according to the staff, the consequences might have been worse than in Bhopal.
Chemical plants, where large amounts of highly toxic chemicals are routinely stored, are the nation’s greatest terrorism vulnerability. Since the Sept. 11 attacks, environmental groups and others have been pushing for a federal law that imposes tough safety regulations on the plants. One of their highest priorities has been a mandate that plants replace particularly dangerous chemicals, like chlorine, with safer alternatives when practical.
So far, Congress has failed to come through. In 2006, it sided with the chemical industry and passed an extremely weak law. That faulty law sunsets this fall, which gives Congress a new chance to make things right.
The next law should impose strong, mandatory safety rules. It should contain a safer-chemicals requirement, protection for whistleblowers, and a provision allowing citizens to sue for violations. It should make clear that the federal rules do not pre-empt state laws, so states can do more to protect their residents if they want.
This will not be easy. The chemical industry, which is a major campaign contributor, has spent years fighting tougher safety rules, which it sees as a threat to its bottom line. The more the process is delayed, the harder it will be to get a good bill drafted and voted on.

New York Times, April 21, 2009

Company Seen as Trying to Hide Details of West Virginia Blast

WASHINGTON — When a huge explosion occurred last August at a West Virginia chemical plant, managers refused to tell emergency responders for several hours about the location of the incident or the toxic chemical it released, and they later misused a law intended to keep information from terrorists to try to stop federal investigators from learning what happened, members of a House subcommittee said Tuesday. The explosion, at Bayer CropScience, in Institute, W. Va., killed two employees and sickened six volunteer firefighters. It was felt 10 miles away, and a tank weighing several thousand pounds “rocketed 50 feet through the plant,” committee investigators found. Fortunately it did not go in the direction of a tank holding the same chemical that killed thousands in a 1984 chemical plant explosion in Bhopal, India.
That tank was protected by a woven metal blanket designed to stop shrapnel, but the company destroyed the blanket before investigators could see it, according to the committee.
Devices meant to detect releases of the chemical, methyl isocyanate, known as MIC, had been disabled, and video cameras had been disconnected, steps that “raise concerns about an orchestrated effort by Bayer to shroud the explosion in secrecy,” said the subcommittee chairman, Representative Bart Stupak, Democrat of Michigan.
After the Bhopal catastrophe, Congress created an independent agency, the Chemical Safety and Hazard Investigation Board to investigate chemical accidents in this country. But the president and chief executive of Bayer, William Buckner, said in his prepared testimony that company officials believed they could “refuse to provide information” to the board.
Later, Mr. Buckner said, company officials labeled some documents as having security-sensitive information in order to “discourage the C.S.B. from even seeking this information.” The company acted under a 2002 law intended to make ports more secure; the company brings barges in on the Kanawha River. The company asserted that it was under the jurisdiction of the Coast Guard, an agency that does not have extensive experience in chemical processing.
Criticism of the company was bi-partisan. “Allowing inappropriate use of sensitive security information designations to hide inconvenient facts is not acceptable, and undermines public safety,” said Greg Walden, the ranking Republican member of the Oversight and Investigations subcommittee of the House Energy and Commerce committee.
The plant was previously owned by Union Carbide, the company that owned the plant in Bhopal that released tons of MIC in December 1984, killing thousands of people.
Representative Henry A. Waxman, Democrat of California, who is chairman of the Energy and Commerce committee, noted that the same month in 1984, he held a hearing at the Institute plant to inquire about safe use of the chemical.
“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,” he said Tuesday. It was time, he said, “to get on with this job already.”
Committee investigators found internal Bayer documents that detailed a company strategy to “marginalize” a local citizens’ group and the local newspaper, The Charleston Gazette.
Apart from a post-accident campaign to avoid negative publicity by invoking a national security law, the company endangered people in the area by giving no meaningful information for hours and turning away six emergency responders, officials said.
W. Kent Carper, president of the Kanawha County Commission, complained, “You can’t dispatch someone if nobody will tell you what’s going on, where to send them, or what’s the nature of the emergency.”
“We get more information on a car wreck than we got that night,” he said. Eventually, he said, emergency officials “made a decision in the blind, in the dark, to go ahead and issue an order to shelter in place.” Sheltering in place means telling the public to stay indoors and close all doors and windows; it works best if done early.
Mr. Carper, after hearing several members of the committee and other witnesses stumble over pronunciation of methyl isocyanate, said, “I can’t pronounce it either,” but he added: “If you’re going to store a lot of it, you’ve got to tell your neighbors what you’re doing.” By MATTHEW L. WALD

APRIL 21, 2009, Wall Street Journal

Chemical Maker Destroyed Evidence Of West Virginia Blast

Bayer CropScience LP removed and destroyed evidence relating to a chemical explosion at the company's West Virginia plant last year in an orchestrated campaign to keep crucial details of the blast secret, according to a congressional investigation.
Critical video footage of the explosion is also missing as the video equipment was deliberately disconnected, and air safety monitors weren't working, the U.S. House of Representatives' Energy and Commerce Committee said Tuesday. The information was released in conjunction with a hearing on the proposed "American Clean Energy and Security Act of 2009" introduced by committee Chairman Henry A. Waxman, D-Calif., and Rep. Edward J. Markey, D-Mass., last month.
An August 2008 explosion ripped through one of Bayer's chemical buildings in Institute, W.Va., sending fireballs hundreds of feet into the air, killing two employees and injuring a handful of emergency responders.
The blast involved the chemical methyl isocyanate, used to create pesticides. This same chemical killed 4,000 people in 1984 when the toxin leaked from a plant in Bhopal, India.
A transcript of the 911 call shows employees of the plant refused to give details about blast to emergency responders. A 911 operator asked whether the blast took place at Bayer's Larvin Unit, which houses toxic chemicals, and the company responded, "I'm only allowed to tell you that we have an emergency in the plant."
"The lack of quality and timely information from Bayer CropScience placed first responders unnecessarily in harm's way and placed thousands of citizens at risk," W. Kent Carper, president of Metro 911 in the county where the explosion took place, told the House committee Tuesday.
Bayer President and Chief Executive Bill Buckner told the House committee the company's initial response "created confusion and concern" but was well-intentioned. Buckner said the company's actions to keep details of the incident confidential included "a desire to limit negative publicity." He said Bayer didn't want the chemical methyl isocyanate to become part of the public debate as it is a "primary and integral building block" for the company's pesticides.
Bayer has received criticism for citing a terrorism-related federal law, the 2002 Maritime Transportation Security Act, to restrict federal officials from releasing key details of the blast. The company asked the U.S. Coast Guard to review what documents can be released to the public.
Buckner said it realized the company can't keep information from the U.S. Chemical Safety Board, which doesn't have regulatory power but reveals its findings publicly and makes recommendations about what can be done better next time.
Buckner said the company "concedes" that its pursuit of relying on the terrorism-related federal law "was motivated, in part, by a desire to prevent" public debate and pressure to reduce the volumes of methyl isocyanate at its West Virginia plant.

New York Times, April 24, 2009

Safety Panel Cites Errors in Blast at Chemical Plant

INSTITUTE, W. Va. — The explosion that tore through the Bayer CropScience chemical plant here last August, killing two employees, was an easily avoidable accident caused by management decisions and human error, a federal agency said Thursday.
The agency, the Chemical Safety and Hazard Investigation Board, also concluded that Bayer had orchestrated a long effort to stifle the release of information about the accident. Bayer, a subsidiary of Bayer AG, had argued that under antiterrorist legislation, elements of the board’s report should not be disclosed.
Based on the board’s findings, W. Kent Carper, president of the Kanawha County Commission here, said he had asked the United States Attorney’s Office to investigate Bayer for criminal conduct.
“It became clear to me that they intentionally violated safety protocols here, and two people died because of it,” said Mr. Carper, who was a witness this week at a Congressional hearing into the accident.
Charles T. Miller, the United States attorney for the Southern District of West Virginia, said he would look at evidentiary reports both from Congress and the chemical safety board and decide whether to investigate the accident further for criminal conduct.
At the board’s public meeting on Thursday night, which a standing-room-only crowd of more than 300 residents attended, Bayer’s plant manager, Nick Crosby, said the company was trying to learn from the accident.
“We have conducted an extensive internal investigation that identified the factors leading to this incident,” Mr. Crosby said. “Based on these findings, we have implemented several measures — including safety improvements, additional operational procedures and safeguards, and an extensive training and compliance regimen — to ensure that this kind of incident will not occur in the future.”
In the public-comments part at the meeting, Regina Hendrix, 73, of Charleston told the board that even though she had been born in the region and had retired here 11 years ago, “I’ve been so frightened by the incident with the chemicals here that I’m moving.”
Ms. Hendrix said she had been about to buy a new home here, but would now move to the northern part of the state this week.
Critics of the plant said they were glad to hear the safety board’s results, but wanted even more action.
“We come before you today asking that you will finally hear our voices and stop the systematic exploitation of our community,” Maya Nye, spokeswoman for People Concerned About MIC, a local group that has pushed to eliminate a particularly toxic chemical at the plant, methyl isocyanate, or MIC. “We are tired of the smoke and mirrors and cagey nonanswers. Our lives are in your hands, and we deserve to know the truth about the dangers that exist in our community.”
At the news conference, the chemical safety board’s chairman, John S. Bresland, said that because of the chemicals in use, the 400-acre Bayer site was among the most hazardous chemical plants in the country.
Mr. Bresland said he would not feel comfortable if he lived near the plant, which is 10 miles west of Charleston, the state capital, and next to West Virginia State University, where 1,000 students live and 4,000 more attend class.
“If I saw evidence of a really good, solid safety program with no incidents and no releases, I’d feel more comfortable than I do today,” he said.
According to the chemical safety board’s findings, the explosion occurred at 10:35 p.m. on Aug. 28 in the “residue treater” of the unit where the plant makes a raw material called methomyl that is then used to produce an insecticide called Larvin.
While the plant routinely produced methomyl, it was an unusual, and inherently more dangerous, production process on Aug. 28 for two reasons.
First, it was the first start-up of the unit after a three-month shutdown and renovation, and start-ups and shutdowns of chemical plant operations are always dangerous. Second, the renovation involved installing a new computer control system for which, the board said, Bayer had not created a proper training system or operating procedures.
Beyond that, there were at least three major missteps that led to the explosion. First, an undersize heater that had long been used for the unit was not generating enough heat, requiring a “workaround” that would generate the required temperature in the residue treater. Second, to generate more heat, employees deactivated two safety valves to allow more methomyl into the treater. Third, for some reason employees forgot to add a solvent, which allowed the methomyl concentration to reach dangerous levels.
Rather than blame the individual employees who made each of these mistakes, the board’s lead investigator, John Vorderbrueggen, said: “The bottom line is, it’s the management systems that failed and allowed the operators to make these decisions.”
In addition, the board said the unit operators, including the two men who died — Barry Withrow, 45, and Bill Oxley, 58 — had routinely been working 12- to 18-hours a day, with little time off, in the three months leading up to the start-up of the methomyl unit.
“So worker fatigue may have been a factor,” Mr. Bresland said.
For at least one relative of the men who died, that was not a revelation.
In the months leading up to the explosion, Mr. Oxley “had complained about the plant and working so much,” his mother, Lesta Knuckles, said in an interview.
“As far as I’m concerned,” Mrs. Knuckles said, “the plant worked them like animals rather than humans. I think the whole unit was exhausted. The night it happened, they were all working overtime, is what I was told.” By SEAN D. HAMILL

May 4, 2009, Charleston Gazette

Jay, Waxman call for deeper probe of Bayer MIC

Congressional leaders are pushing the U.S. Chemical Safety Board for a more thorough investigation of the methyl isocyanate stockpiled by Bayer CropScience at the company's Institute plant.

CHARLESTON, W.Va. -- Congressional leaders are pushing the U.S. Chemical Safety Board for a more thorough investigation of the methyl isocyanate stockpiled by Bayer CropScience at the company's Institute plant.

Committee leaders from the House and Senate wrote to board Chairman John Bresland on Monday to ask the board to exercise its authority to broadly examine ways to make chemical manufacturing as safe as possible.

"We believe it is past time to consider whether Bayer's continued use and storage of MIC can be justified in light of the health and safety risks it presents to the surrounding community," said the letter from Senate Commerce Chairman Jay Rockefeller, D-W.Va., and House Commerce and Energy Chairman Henry Waxman, D-Calif. Also signing the letter were Rep. Bart Stupak, D-Mich., and Rep. Ed Markey, D-Mass.

Last month, Waxman's committee, through a subcommittee chaired by Stupak, held a hearing on efforts by Bayer to use anti-terrorism secrecy rules to hide information about the August 2008 explosion and fire that killed two workers at the Institute plant.

Among other things, hearing testimony from Bayer CEO William Buckner revealed that the company had hoped citing the secrecy rules would allow Bayer to avoid a public discussion about its stockpile of more than 200,000 pounds of methyl isocyanate, or MIC, the toxic chemical that killed thousands of people in a 1984 leak in Bhopal, India.

Buckner told lawmakers the company believed "because of safety concerns, we would have been prevented from a full public defense of our safety and security measures and the multiple layers of protection we employ for our MIC processes."
In their letter Monday, Rockefeller and Waxman pointed out again that the August explosion occurred just 80 feet from an above-ground "day tank" where Bayer stores up to 37,000 pounds of MIC.

"The explosion caused an over-pressurized vessel to hurtle violently through the facility, destroying virtually everything in its path," the letter said. "If this vessel had struck the MIC tank, the results could have been a disaster worse than the 1984 Bhopal accident, endangering Bayer employees, emergency first responders, and residents of the surrounding community."
Citing the Chemical Safety Board's broad authority under the Clean Air Act, the lawmakers urged the board to:
# Conduct an investigation to determine the options for Bayer to reduce or eliminate the use or storage of MIC at its West Virginia facility by switching to alternative chemicals or processes and the estimated cost of these alternatives;
# Determine whether Bayer has adequately examined the feasibility of switching to alternative chemicals or processes;
# Provide in its full report specific recommendations for Bayer and its state and federal regulators on how to reduce the dangers posed by on-site storage of MIC; and
# Brief congressional committee staff on the board's findings and recommendations at the end of its investigation.

Already Bresland has said that the board asked Bayer for copies of any studies "of the feasibility and costs of eliminating MIC from the process or reducing its storage at the Institute site."

But it is not clear in how much detail the board planned to study that issue before issuing a final report later this year. During discussions with the board, Bayer has pushed for the agency not to examine MIC questions at all, let alone in the broad sense now urged by lawmakers.

Since holding a news conference and a public meeting on April 23, both in Institute, board officials have not responded to several requests from The Charleston Gazette to answer a long list of follow-up questions.

But Bresland in an interview Monday that his agency is not letting up on the Bayer probe.

He said board investigators have just received about 4,000 pages of MIC documents from Bayer and are beginning to review them.

"We'll be evaluating those documents and then deciding what steps we need to take," Bresland said. "It's really a logical follow-up to our testimony in Congress and our public meeting."

Bayer spokesman Tom Dover said the company has received the congressional letter and is reviewing it. By Ken Ward Jr., Staff writer

May 6, 2009, Charleston Gazette

Get MIC away from people

There is no reason to believe that Bayer, any more than its predecessors, will seriously address the most obvious question now before us: How do we eliminate the hazards that plant management has demonstrated it can't handle in a safe and responsible manner?
Dr. Gerald Beller

On Aug. 28, 2008, an explosion in a "residue treater vessel" at Bayer's Institute plant killed one worker and burned another so severely that he also died. The explosion was powerful enough to turn the residue vessel into a 5,000-pound projectile plowing through 50 feet of equipment in Bayer's Methomyl-Larvin unit.

By now, after a congressional investigation and a public presentation by the U.S. Chemical Safety Board, we know about the extraordinary series of mistakes that led to the disaster; the failure of Bayer to inform emergency officials of what happened so that they could protect nearby neighborhoods; the blunt use of Homeland Security rules to divert an investigation into the larger MIC unit and prevent transmission of information to the public; and Bayer's efforts to respond to criticism by using ad hominem attacks against People Concerned About MIC and The Charleston Gazette.

For decades, nearby residents and staff at West Virginia State University have become used to dangerous accidents and leaks at the Institute facility, whose potential for harming plant neighbors was always minimized by plant officials. Invariably, the implicit assumption from a public-relations perspective was that the most important task was to convince the public that at no time did an accident present a serious threat to neighbors.

For almost 25 years after Bhopal, concerns about the potential for larger disasters were handled through discussions at community forums where plant officials or their spokespersons engaged in endless reassurances. For a time, we became the national focal point for those who wanted to establish a model for helping ordinary citizens "learn" how to negotiate differences with chemical plants, as if all problems were merely a matter of ignorance and misunderstanding.

Anyone who believes these PR games today is either seriously misinformed or in willful denial. The projectile that destroyed the Methomyl-Larvin unit could just as easily have torn into an MIC tank located 80 feet in another direction, creating a disaster that the chairman of the Chemical Safety Board says could have been "greater than Bhopal."

In case you don't know, that would have meant the loss of several thousand lives and decades of chronic illness for those of us living in Charleston, St. Albans, Dunbar, Nitro, Institute, Cross Lanes, South Charleston and other neighborhoods.

The problem is no longer how to merely "manage" chemical hazards and/or the public. It has just been demonstrated that such hazards are not, and are never likely to be, "managed" in a way that will reassure plant neighbors. Our real concern should be how to eliminate hazards that cannot be handled responsibly. That means that the "full public discussion" demanded by Chairman Bresland at the Chemical Safety Board hearing at Institute must have as its primary responsibility how to eliminate storage of MIC and other dangerous chemicals like phosgene in the Institute plant.

Institute is the only place in the United States that stores quantities of MIC large enough to fall under EPA and OSHA rules requiring estimates of "worse-case scenarios," alongside a set of guidelines and regulations concerning "process safety" that Bayer has just shown can be easily sidestepped or treated in cavalier fashion.

Even before Bhopal, some chemical firms were finding alternatives to storage of large quantities of MIC or other toxic chemicals close to neighborhoods. After the Bhopal disaster revealed the full dangers of this practice, DuPont and other chemical companies eliminated storage of MIC, focusing on a "closed loop" system.

Why are we in the Kanawha Valley the exception? Is it because we can be more easily gulled into believing that we are really safe, despite all the evidence? Is it assumed that we will more easily accept the prospects of their own deaths in some future chemical catastrophe as an "acceptable risk" which we must accept if we want prosperity? Does the impunity that company officials feel about the storage of deadly chemicals next to neighborhoods reflect an unwarranted faith in "crisis containment" public-relations experts, or a simple calculation that future costs are unlikely to exceed current profits?

The staff report of the House Energy and Commerce Committee in Washington on April 21, as well as the public testimony of Bayer's CEO before the same committee, strongly suggests that the effort to prevent wider public knowledge about the latest accident was largely based upon "business considerations" and a desire to avoid discussion of alternatives to storage of MIC. There is no reason to believe that Bayer, any more than its predecessors, will seriously address the most obvious question now before us: How do we eliminate the hazards that plant management has demonstrated it can't handle in a safe and responsible manner?

Bayer executives obviously know that their own multiple failures of "process safety" management make them vulnerable to a full discussion of this issue. It will be interesting to see how revived PR teams address what happens now. Based upon past successes, I wouldn't bet against them. But neither would I bet against an aroused public which has grown tired of being led like sheep to slaughter.

Dr. Beller, a professor at West Virginia State University, is a Gazette contributing columnist.