Press Release, April 21, 2009
Coalition against Bayer Dangers (Germany)

Congress Investigates Fatal Bayer Explosion

early warnings neglected / letter to House Committee / countermotion to Bayer shareholder meeting

Today a House Committee hearing will investigate the fatal Bayer CropScience plant explosion at Institue (W.Va.) which occurred Aug 28, 2008. On Thursday the Chemical Safety Board will examine the incident publicly.

In a letter to Henry Waxman, Chairman of the Committee on Energy and Commerce, and Bart Stupak, Chairman of the Subcommittee on Oversight and Investigations, the Coalition against Bayer Dangers pointed towards the warnings that were voiced prior to the accident but were rejected by Bayer´s Board of Management.

On March 10, 2008 the Coalition introduced a countermotion to Bayer´s shareholder meeting which stated: “Whereas the volume of supertoxic agents like phosgene and MIC stored at the German Bayer plants was reduced following the Bhopal catastrophe, the tanks in Institute remained as they were. Today, Institute is the only place in the United States where MIC is produced and stored in large volumes. The Bayer Board of Management bears responsibility for the high pollutant emissions, the frequent occurrence of incidents and the constant risks caused by the storage of MIC and phosgene.” Bayer produces carbamate pesticides in Germany without utilizing large quantities of MIC as at Institute.

Philipp Mimkes, board member of the Coalition against Bayer Dangers, also spoke on the issue in Bayer´s shareholder meeting which took place in Cologne/Germany April 25, four months ahead of the Institute explosion. Attending were the Bayer board and supervisory board, the media and about 4,000 shareholders. Mimkes criticized the frequent spills of chemicals and demanded to dismantle MIC- and phosgene-tanks at Institute. Bayer´s CEO Werner Wenning neglected the warnings, stating verbatim that the plant had the “newest security installations and an excellent safety record since 2002”, that the plant was “explicitly lauded by authorities for its safety record” and that no action was necessary.

Philipp Mimkes: “Until today the company has not apologized for the gross negligence by which the methomyl unit has been operated for the past years. No changes in the security management have been announced. Particularly disturbing to us is that Bayer´s recently published Annual Report does not mention the Institute explosion and the death of their workers with one single word.” The Occupational Safety and Health Administration, after analyzing the incident, also criticized "faulty safety systems, significant shortcomings with the emergency procedures and a lack of employee training". In total, OSHA identified 13 serious violations of safety regulations.

After the explosion Bayer endeavored to placate everyone by maintaining that the large MIC tanks were accommodated in another part of the factory. Weeks later it emerged that one MIC tank containing up to 20 metric tons of the deadly gas is located above ground less than 20 meters from the explosion. If it had been damaged, the lives of other employees and residents would have been in extreme danger.

The Coalition against Bayer Dangers again introduced a countermotion to this year´s meeting which demands not to ratify the board until the MIC stockpiles are dismantled and the frequent spills are stopped. The countermotion, which also has been published on Bayer´s website, will be discussed in the shareholder meeting at Duesseldorf/Germany on May 12.

In the 1980s, the Institute factory belonged to Union Carbide and was regarded as the "sister plant" to the infamous factory in Bhopal, India where in December 1984 thirty tons of MIC leaked and at least 15,000 people died.

New York Times, March 28, 2009

Bayer: Trying to Limit Disclosure on Explosion

INSTITUTE, W.Va. - Last August, an explosion tore through the Bayer CropScience chemical plant here, killing two employees and raising the fears of residents in what has long been known as Chemical Valley.

Now, a federal agency wants to hold a public hearing to lay out its preliminary findings about what caused the accident. But Bayer, citing a terrorism-related federal law, is trying to limit what the agency can disclose.

Bayer contends that because it has a dock for barge shipments on the adjacent Kanawha River, its entire 400-acre site qualifies under the 2002 federal Maritime Transportation Security Act. It has asked the Coast Guard, which has jurisdiction under the act, to review the public release of "sensitive security information."

The agency that wants to hold the hearing, the Chemical Safety and Hazard Investigation Board, says it is the first time in its 11 years of operation that a company has tried to limit what could be discussed publicly, and the first time the maritime act has been invoked this way.

"I don't like the idea that if we went to a meeting in West Virginia and someone asked a question, we'd have to say, 'Sorry, we can't talk about it,' " said John S. Bresland, the board chairman. "We don't think any other agency should have the right to tell us what we can put in our reports."

In particular, Bayer appears to want to limit discussion about the potential hazards posed by a chemical produced and used by the plant - methyl isocyanate, the same chemical responsible for the deaths of thousands of people in Bhopal, India, after a Union Carbide plant leaked there in 1984. Until 1986, Union Carbide owned the plant here, which was considered the sister plant.

The chemical safety board believes that if Bayer is successful, it will set a precedent for other companies to limit the release of information.

The board was modeled on the National Transportation Safety Board. And like the transportation board, it has no regulatory power, so it cannot fine a company or order changes in operations. Its power comes from revealing its findings and making recommendations.

"We have a bully pulpit," Mr. Bresland said, "and we use it by going out in public and talking about what we've found."

After Bayer invoked the maritime act in February, the chemical safety board canceled a March 19 public meeting in West Virginia while it sought to resolve the dispute. It has tentatively rescheduled the hearing for April 23 while awaiting the Coast Guard's decision, which it could appeal to the Transportation Security Administration.

Bayer's action also caught the attention of Representative Bart Stupak, Democrat of Michigan and chairman of the House Subcommittee on Oversight and Investigations. Mr. Stupak scheduled an April 21 hearing to review the company's action, saying, "We are concerned about the way that Bayer may be misusing terrorism laws to suppress information related to the incident."

Bayer believes it has a strong case for suppressing public discussion of its operations in West Virginia, said a company spokesman, Greg Coffey.

"In security matters, the site comes under the jurisdiction of the Coast Guard," Mr. Coffey said. "We have and will continue to comply with the spirit of the regulations" of the maritime act.

And Bayer appears to have the support of the Coast Guard. A spokesman, Lt. Cmdr. Chris O'Neil, said that the service considered the entire plant, not just the dock, a "regulated facility," and that "it might only be prudent to protect that information" Bayer does not want discussed.

But Mr. Bresland said the chemical board contended that the maritime act applied only to transportation of the chemicals, not the onsite storage and processes. Methyl isocyanate, a chemical used in the production of carbamate pesticides, was not directly involved in the August explosion, which the company has said was caused by human error in a unit that contained the less toxic chemical methomyl.

But an above-ground storage tank that can hold up to 40,000 pounds of methyl isocyanate was just 50 feet to 75 feet from the blast area, and a much larger underground tank in a different part of the plant site can store an additional 200,000 pounds. In the Bhopal disaster, 50,000 to 90,000 pounds of the chemical leaked.
It is the onsite storage of the methyl isocyanate (or MIC) that has long concerned West Virginia environmentalists. After the Bhopal disaster, professors at West Virginia State University, which is next to the plant, and residents started People Concerned About MIC to monitor the plant.

"One of the ironies is that in the 1980s, one of the demands we had was that Carbide should act more like Bayer did in Germany and not store MIC at the plant and just make it when it needed to use it," said Prof. Gerald E. Beller, chairman of the department of political science at the university, who helped start the local group.

There are many other issues related to the accident that the chemical safety board wants to talk about, including the amount of overtime Bayer employees had been working before the accident; how poor communications were between the plant and outside emergency crews the night of the accident; and how one of the two men who died, Barry Withrow, had a toxic level of cyanide in his blood that no one has been able to explain.

But a large part of what the board wants to talk about is the risks posed by the tanks of methyl isocyanate. If the explosion had damaged the smaller above-ground tank in particular, "the consequences of the accident might have been worse," Mr. Bresland said. By SEAN D. HAMILL

Letter to the Editor:

It is clear from the article "Trying to Limit Disclosure on Explosion ," that the Chemical Safety Board cannot adequately do their job of making recommendations that lead to a safer chemical industry if they are not allowed to publicly address the real issues of the Bayer explosion. Ignoring these issues is the reason why my community is the only place in the US that has been living under the threat of another Bhopal disaster for over 25 years now. We are seemingly considered acceptable risk factors because we are an Appalachian community made up of predominantly minority and poor white folks. Alternatives to methyl isocyanate (MIC) have been available since prior to Bhopal. Bayer should be required to implement the most inherently safest technology available to not only eliminate national security threats it poses, but also to set a precedence for the health and safety of workers and communities surrounding toxic chemical plants.

Maya Nye, Spokesperson People Concerned About MIC
Friday, April 3, 2009

Rockefeller Urges Immediate Action on Bayer Chemical Explosion

Senator sends letter to Coast Guard Commandant.

WASHINGTON, DC -- Senator John D. (Jay) Rockefeller IV sent a letter Friday to the United States Coast Guard requesting that they release key findings in the Bayer CropScience chemical explosion investigation, without compromising national security.
The Coast Guard has been working with the Chemical Safety and Hazard Investigations Board (CSB) to determine the cause and reaction to the August 2008 Bayer chemical explosion in the Kanawha Valley.
In a letter to Admiral Thad Allen, Commandant of the United States Coast Guard, Senator Rockefeller said:
“I know that the Coast Guard is working closely with the CSB to review its findings and to determine what information can be released to the public. I ask that you consult as soon as possible with the Transportation Security Administration and use your collective discretion to reveal all key findings of the CSB that will inform the public regarding both the incident and any remaining hazards and risks to the community, without compromising our national security interests. As you know, transparency is essential for identifying, correcting, and preventing these types of incidents and improving emergency handling in the future. MTSA regulations should never be permitted to be abused to obstruct a safety investigation.”

A Collection of Materials on Bayer´s Institute Plant

April 16, 2009, USA TODAY editorial

Our view on public safety: Security smokescreen hinders chemical plant inquiry

Last August, an explosion at a pesticide plant in West Virginia killed two workers. That was bad enough. But since then, the accident has become a troubling example of what can happen when national security concerns collide with the public's right to know about safety threats.

In this case, the public has a major interest in finding out as much as possible. The blast occurred in a part of Bayer CropScience's plant in Institute, W.Va., that's just 80 feet from an above-ground tank containing one of the deadliest industrial chemicals on earth — methyl isocyanate, or MIC.
That's the chemical that leaked from a sister facility in Bhopal, India, in 1984, killing thousands of people. Had this explosion punctured the MIC tank, the results could have been catastrophic. Some 300,000 people live within 25 miles of the plant, located about 7 miles northwest of Charleston.
Those people, and others who live near similar facilities, deserve to understand the risks they face and what plant owners are doing to mitigate them. Yet when the Chemical Safety and Hazard Investigation Board launched an investigation of the Institute blast, and scheduled a public hearing to disclose its preliminary findings, obstacles were thrown in its way.
Bayer declared that some of what the safety board planned to disclose was "sensitive security information" under a post-9/11 law meant to safeguard the docks at chemical plants. Though the accident occurred atanother part of the 400-acre site, the Coast Guard agreed with Bayer that it had security jurisdiction over the entire plant. Anything the safety board planned to divulge to the public would have to be cleared first by the Coast Guard.
The safety board canceled its first hearing while it worked out what it could say. Eventually, the agency agreed to withhold just one fact: what time of day chemicals are transferred at the plant, which could conceivably give terrorists information about when to strike. The public hearing has been rescheduled for next Thursday, two days after a congressional hearing into the accident.
Though the safety board and the Coast Guard have come to terms for now, the episode is a worrisome demonstration of how easy it is for a company to overwhelm a small agency — the chemical safety board has 36 employees — by burying it with paperwork and making broad national security claims.
Like the National Transportation Safety Board, the chemical safety board has no regulatory authority, and public pressure is often the only tool it has to force companies to change dangerous practices. That makes it crucial for the safety board to be able to make its investigations and recommendations public.
To be sure, national security is a legitimate concern, and chemical plants are an inviting target. But reflexively invoking secrecy, in the name of thwarting al-Qaeda, risks going too far and could allow companies to get away with shoddy safety procedures. The blunt truth is that neighbors are more likely to die in industrial accidents than terrorist attacks. Policy should be set accordingly.

April 16, 2009