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March 10, 2009
Updated March 12, 2009, 3:10 PM EDT | Also appeared in print March 16, 2009, p. 40

Safety Board Retreats

Citing antiterrorism law, Bayer pressures Chemical Safety Board to cancel public meeting on fatal accident

Jeff Johnson


911: Bayer CropScience Explosion

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Restriction Details of an investigation into an explosion that destroyed parts of the Bayer facility, in West Virginia, are being held up due to national security concerns. Chemical Safety Board
Restriction Details of an investigation into an explosion that destroyed parts of the Bayer facility, in West Virginia, are being held up due to national security concerns.

IN EARLY FEBRUARY, the Chemical Safety & Hazard Investigation Board (CSB) was deep into planning for a March 19 public meeting in Institute, W.Va. The meeting would give the board and community a chance to discuss events surrounding a deadly accident at the Bayer CropScience facility in the Kanawha Valley.

It would be similar to many meetings held in the past by the independent board and is part of CSB's process to investigate and find the root cause of chemical accidents. At that time, the board was about halfway through its investigation of the Aug. 28, 2008, fire and explosion at the Bayer plant that killed two workers and shut down the plant's production of Larvin, an insecticide, which has been reported in detail by West Virginia's Charleston Gazette.

CSB had intended to hear community concerns, gather more information on the accident, and inform residents of the status of its investigation. However, Bayer attorneys contacted CSB Chairman John Bresland and set up a Feb. 12 conference at the board's Washington, D.C., headquarters. There, they warned CSB not to reveal details of the accident or the facility's layout at the community meeting.

"This is where it gets a little strange," Bresland tells C&EN. To justify their request, Bayer attorneys cited the Maritime Transportation Security Act of 2002, an antiterrorism law that requires companies with plants on waterways to develop security plans to minimize the threat of a terrorist attack. Part of the plans can be designated as "sensitive security information" that can be disseminated only on a "need-to-know basis." Enforcement of the act is overseen by the Coast Guard and covers some 3,200 facilities, including 320 chemical and petrochemical facilities. Among those facilities is the Bayer plant.

Bayer argued that CSB's planned public meeting could reveal sensitive plant-specific security information, Bresland says, and therefore would be a violation of the maritime transportation law. The board got cold feet and canceled the meeting.

Bresland contends that CSB wasn't agreeing with Bayer, but says it was better to put off the meeting than to hold it and be unable to answer questions posed by the public.

The board then met with Coast Guard officials, Bresland says, and formally canceled the community meeting. The outcome of the Coast Guard meeting remains murky. It is unclear what role the Coast Guard might have in editing or restricting release of future CSB reports of accidents at covered facilities, the board says. "This could really cause difficulties for us," Bresland says. "We could find ourselves hemming and hawing about what actually happened in an accident."

Lisa K. Novak, a Coast Guard spokeswoman, tells C&EN that a review of CSB's reports is not being considered at this time and the Coast Guard will continue to work with CSB to reach a process by which "transparency can be sustained without undue compromise of national security information."

BRESLAND PREDICTS that this will be sorted out as CSB prepares and releases the Bayer report this summer. Among the 49 investigations that the board has completed, this is the first public meeting canceled for security reasons or due to company pressure. It raises questions about whether terrorism fears can be used to blunt CSB accident investigations. Although the board has no regulatory authority, its accident reports and videos have had wide influence on companies, encouraging them to improve their safety performance, eliminate dangerous practices, and better control use of toxic chemicals.

In this case, Bayer's history of use and storage of toxic reactive chemicals has galvanized community concern, says Maya Nye, a spokeswoman for People Concerned About MIC, a West Virginia community group made up of residents living near the Kanawha Valley plant. Nye and the group want Bayer to phase out its use of methyl isocyanate (MIC).

The community group selected its name when it was formed more than 20 years ago, after the 1984 Union Carbide accident involving MIC at a plant in Bhopal, India, that killed some 5,000 people and injured 200,000.

At that time, the facility in Institute was also owned by Union Carbide and was a sister to the Bhopal plant. Both stored large quantities of MIC.

Over the years, the Institute plant changed hands several times and in 2002 was purchased by Bayer. Throughout this time, MIC was stored at the facility.

According to Bayer plant data filed with the Environmental Protection Agency, the company stores up to 1.4 million lb of chlorine and ammonia, 19,000 lb of phosgene, and 240,000 lb of MIC on-site. Of the total MIC stored, the data show that up to 40,000 lb can be stored for use in the same process line that exploded last year. Bayer's total storage of MIC at this 50-year-old plant greatly exceeds what was leaked at Bhopal, and the amount stored in the Larvin process is quite near Bhopal levels. That makes community residents, chemical engineers, emergency responders, and plant workers nervous.

A public CSB meeting, Nye says, would give the community information on the accident and what CSB has learned. "We want to know what is going on. Are we safe or not?" she says. Of particular concern, she adds, are the contents of a plume residents saw emerge from the accident site.

WITHIN WEEKS of the accident, Nye says her group organized a community forum in which local and federal officials participated, but representatives of Bayer did not appear; instead the company submitted a statement. Nye says Bayer has held one meeting to explain the accident, but it was closely controlled by a public relations firm hired by the company. She calls Bayer's secrecy "absolutely phenomenal."

In a letter to CSB, Nye and a dozen community groups urged the board to hold the public meeting. The letter charges that the postponement is a "political act" and represents a voluntary exit by CSB in the national debate to encourage chemical companies to shift to inherently safer design technologies.

Despite repeated requests, Bayer would not respond to direct questions about the accident from C&EN, nor would the company discuss its storage and use of MIC. Instead, Greg Coffee, a company spokesman, offered a statement, saying Bayer has and will continue to cooperate fully with CSB regarding the August accident at Institute.

"All decisions concerning the public meeting were made entirely by the CSB, and Bayer has no influence on the content or the timing of the board's activities," Coffee said. "The safe operation of the facility and the safety of our employees and the community remain our highest priority, and as such we intend to fully comply with all laws and regulations such as those administered by the federal Department of Homeland Security and the Coast Guard.

"MIC was not involved in the August incident, and inventory of the material is kept to a minimum, and the site contains multiple layers of safeguards to ensure safety and security of MIC," Coffee said.

The company also said it has worked with local emergency responders to improve emergency communications.

INSPECTORS Bresland (left) and John Vorderbrueggen, CSB supervisory investigator and leader of the Bayer investigation, survey an accident site. Chemical Safety Board
INSPECTORS Bresland (left) and John Vorderbrueggen, CSB supervisory investigator and leader of the Bayer investigation, survey an accident site.

Bresland explains that the accident occurred during a process start-up in a tank holding methomyl and a mix of other chemicals. Methomyl along with MIC is reformulated to make Larvin.

The CSB investigation, Bresland says, is examining MIC's use and the location of an MIC storage tank near the tank that exploded. "As it turns out," he says, "there wasn't a release from the MIC tank, but there could have been. So the question that comes up is, what was the potential for a release of MIC?"

CSB is also concerned with two other matters, Bresland adds. The first is finding the root cause of the explosion, which is part of the board's charge. The second issue is Bayer's unwillingness to supply specific accident information to emergency responders when the accident occurred.

The accident took place at about 10:30 PM, and a tape of the 911 calls between plant officials and emergency responders shows that a plant guard would not identify where in the facility the accident had occurred or which chemicals or processes were involved.

Even when calling for an ambulance, the guard refused to reveal the extent of the accident despite repeated questions from an exasperated county emergency services official. Eventually county officials called for shelter-in-place for several thousand people living near the plant.

As a result of Bayer's unwillingness to aid emergency responders, the West Virginia Legislature is considering a new law that would require companies to immediately report accident details to emergency responders. Heightening concern among the Institute community and area emergency responders alike is the storage of large quantities of MIC and fears of a Bhopal-like tragedy.

FOLLOWING THE Bhopal accident, many companies phased out MIC storage and shifted to a process that formulates and uses MIC immediately in other processes, notes Trevor Kletz, who is considered the father of inherently safer process design. After working as a manager and chemical engineer for 38 years with Imperial Chemical Industries, he now writes and lectures on the topic.

The goal for inherently safer design, Kletz notes, is to reduce stored quantities or eliminate use of toxic materials, such as phosgene, ethylene oxide, chlorine, or MIC.

Kletz explains that their reactive nature makes these chemicals invaluable as chemical production intermediates, but they should be created and used as quickly as possible.

"If you make an intermediate and immediately send it down the pipeline to another process, the worst that can happen is a break in a pipeline and that can be stopped by closing one valve. In the case of Bhopal, it would have been a leak measured in kilograms rather than tons," he says.

Since the 9/11 attacks, Kletz believes the case for eliminating storage and use of toxic materials is even stronger. "Now we are worried about terrorists being able to place a bomb in a factory where it can have maximum effect," he adds.

Kletz notes that toxic and reactive chemicals cannot always be eliminated—it depends on the particular production process. He is supported in this view by other chemical engineers interviewed by C&EN.

However, as Daniel A. Crowl, Herbert H. Dow Professor for Chemical Process Safety at Michigan Technological University, notes, "If companies didn't have this inventory, they wouldn't have the terrorist concern."

In many cases, Crowl says, on-site storage of large quantities of toxic chemicals is due to "sloppy inventory keeping."

"If a company runs a tight plant and has a rigorous and disciplined management system, it can literally produce MIC and use it up on the spot," Crowl says. "They could have done this in Bhopal. The technology has been around since the 1960s."

ONE COMPANY that has done so is DuPont. Within months of the Bhopal accident, DuPont ended on-site MIC storage at its facility in LaPorte, Texas, that makes the insecticide Lannate. Until that time, the DuPont plant had been buying MIC from Union Carbide's Institute plant and transporting the material to LaPorte for storage and use.

According to a DuPont report, its engineers developed and deployed an "inherently safe, point-of-use process" to create MIC based on air oxidation of monomethyl formamide (MMF), a nonhazardous material that was made in a DuPont facility in West Virginia and shipped to Texas. The MIC unit sits next to the Lannate unit, the engineers wrote, and the only MIC on-site is in a short transfer line. DuPont accomplished this shift within six months, including creating an MMF production line. For this effort, DuPont's team of chemical engineers received a 2003 Industrial Innovation Award from the American Chemical Society.

CSB will push ahead with its accident report, Bresland says, and expects to issue it by summer. He is unsure what role the Coast Guard may play in reviewing it.

The accident has brought the Bayer plant onto the radar screen of at least one other federal agency. The Occupational Health & Safety Administration issued a $143,000 fine on Feb. 26 based on its examination of the conditions that led to the accident.

One day later, EPA fined Bayer $112,000 and announced a $900,000 agreement to settle a wide range of violations that were revealed in inspections conducted between 1999 and 2001. An EPA spokeswoman said the agency had been negotiating with Bayer over the years and the timing of the fines and settlement was a "coincidence."

With reporting by Rochelle F. H. Bohaty.

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