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What Should The Public Know?

Bayer, chemical board dispute over community access to accident data may be harbinger of battles to come

by Jeff Johnson
April 20, 2009 | A version of this story appeared in Volume 87, Issue 16

On The River
Credit: Jeff Johnson/C&EN
Some 10,000 industrial facilities are U.S. security concerns, and 3,000 of them are regulated by the Coast Guard, such as this one on the Houston Ship Channel.
Credit: Jeff Johnson/C&EN
Some 10,000 industrial facilities are U.S. security concerns, and 3,000 of them are regulated by the Coast Guard, such as this one on the Houston Ship Channel.

EARLY THIS MONTH, the U.S. Coast Guard (USCG) and the Chemical Safety & Hazard Investigation Board (CSB) reached an agreement over what could be revealed during an upcoming community meeting in Institute, W.Va., set to discuss a fatal industrial accident at the Bayer CropScience plant.

The agreement resolved a dispute between CSB and Bayer over constraints—which the company said were based on security concerns—about what the board could say to people living near its facility about the Aug. 28, 2008, deadly accident and explosion. This type of dispute is likely to become an increasing problem for CSB, because some 10,000 facilities are covered by security laws that place limits on the information companies can openly make available.

In the Bayer accident, as with all industrial accidents, the details of why this mishap occurred are important—two workers were killed and thousands of people living near the plant were forced to "shelter in place" in their homes on the night of the fire and explosion. Confusion reigned that night. Emergency responders were unsure where in the plant the accident had occurred or what chemicals had been released. Residents said they saw a plume exit the plant but don't know what they were exposed to, notes resident Maya Nye, a spokeswoman for the local group People Concerned About MIC, which stands for methyl isocyanate (C&EN, March 16, page 40).

Although the board regularly holds community meetings during investigations, this is the first time a company has cited security concerns to block information from going public. Bayer objected to the release of information contained in some 48 documents. The company cites the need to keep secret "sensitive security information" that is protected under the Maritime Transportation Security Act (MTSA), an antiterrorism law that covers the plant because it is on a waterway, the Kanawha River.

Bayer officials say they fear plant-specific information might fall into terrorists' hands. However, community members want to know what they were exposed to and how the plant can be made safer.

The issue is magnified in this case because Bayer stores large quantities of MIC, the chemical that led to thousands of deaths in Bhopal in 1984.

When Bayer objected to CSB's possible release of security-sensitive information, both parties looked to USCG, which oversees MTSA.

A Coast Guard review of the material that CSB planned to use in the community meeting found only one problem—a reference to the time of day MIC is transferred within the plant. In response, CSB struck this information from its material.

NOW, USCG wants to formalize this negotiation process; CSB is not so sure.

Specifically, the Coast Guard wants to develop a memorandum of understanding (MOU) with CSB to guide future security matters, says Lt. Cmdr. Christopher O'Neil, USCG chief of media relations.

"We are not interested in becoming an overseer of CSB or weighing in on the conclusions it makes in its investigations. Our sole purpose is to make sure protected information isn't inadvertently disclosed," O'Neil says. "This is not a way for companies to withhold information from CSB."

O'Neil says USCG has no proble m sharing information with government bodies such as CSB or emergency responders if they sign nondisclosure statements agreeing not to release information that USCG deems sensitive.

"We have even agreed to give CSB Bayer's security plan—providing they sign a nondisclosure agreement," O'Neil adds.

"Well, this is where it gets tricky," CSB Chairman John Bresland says, noting that this problem has never occurred before during the board's 49 accident investigations over the past 10 years. "We pride ourselves on being a public agency in terms of getting accident information out to the public with our reports and safety DVDs."

Bresland acknowledges that the Coast Guard review worked this time, but he worries about the future. "If we have to go through this process with every investigation covered by security regulations, it is going to make our lives complicated," he says.

"We don't want to disclose information about numbers of guards, how high the fences are, when guards make their rounds," Bresland explains. "But we do care about the chemicals used in a plant, how much is stored on-site, and the potential impact of a release."

CSB has no regulatory authority; its sole power is to identify the causes of accidents and to focus public attention on their resolutions. Bresland points to several accident investigations that led to chemical process changes and reductions in on-site storage of certain chemicals.

But Bresland's concerns go beyond the initial public meeting, which has been set for April 23. He worries about next summer when CSB finishes its final 100-plus-page report on the Bayer accident. Says Bresland, "If we have to send it over for Coast Guard review, it would get very complicated."

Before agreeing to hammer out an MOU, the board will look to Congress for direction, Bresland says. A hearing before a House Energy & Commerce subcommittee on the CSB investigation at Bayer has been scheduled for April 21.



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