Sustained Outrage

AP: Decades-old toxic threat lifts from W.Va. town

In this Feb. 16, 2011 photo, the buildings and smokestacks of the 460-acre Bayer CropScience chemical complex are visible from a softball field on the campus of West Virginia State University in Institute, W.Va. (AP Photo)

Here’s a take on today’s news about Bayer from The Associated Press:

INSTITUTE, W.Va. (AP) — For the first time in 26 years, Barbara Oden can let go of the image that has haunted her — poisonous gas leaking from a Union Carbide tank and killing thousands of people in Bhopal, India, in the world’s deadliest industrial disaster.

On Friday, she and other residents of a tiny West Virginia town won what had seemed like a never-ending battle to get the same toxic chemical, methyl isocyanate, out of their back yard.

In a surprise move in U.S. District Court in Charleston, attorneys for Bayer CropScience announced they were dropping plans to resume production of the chemical, commonly called MIC, and would begin dismantling the unit.

That ends the key part of the latest lawsuit in a nearly three-decade battle. Claims for property damages and medical monitoring remain, and Judge Joseph Goodwin has scheduled a hearing Monday on the remaining issues.

But Bayer’s decision erases a threat that loomed over the people of Institute for a generation.

The company will no doubt replace MIC, which is used to make a pesticide, with some other chemical, but nothing could be as bad, said Oden, a retired biology professor at West Virginia State University who still lives next to the plant.

“Chemicals don’t have to kill,” she said.

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I’m just back from federal court, where Bayer CropScience lawyer Al Emch informed Chief U.S. District Judge Joseph R. Goodwin that the company has decided not to resume production of the deadly chemical methyl isocyanate at its Institute plant.

Here’s Bayer’s news release:

Bayer CropScience today announced that the company has decided not to restart the transitional production of methyl isocyanate (MIC) at its site in Institute, West Virginia. As a result, the company will move forward immediately with decommissioning of the reconfigured MIC and associated production units as well as the closure of Woodbine.

Bayer CropScience was planning to start the MIC unit and begin transitional production of the Temik® brand insecticide early this year, but uncertainty over delays has led the company to the conclusion that a restart of production can no longer be expected in time for the 2011 growing season.

The safety of the MIC plant, which was overhauled completely and technically modified during the past months, was confirmed again by a federal court-commissioned expert report on the plant’s safety, which was delivered to the court this week. However, against the background of the continuing uncertainty regarding the timing of resumption of production, the company needed to make a decision.

UPDATED: Here’s a link to the audio of a Bayer conference call with reporters that just ended —

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Photo by Tom Hindman, Charleston Daily Mail, via Associated Press

We reported in this morning’s Gazette on a major development in the lawsuit over Bayer CropScience’s effort to resume production of the deadly chemical methyl isocyanate at its Institute, W.Va., plant. As the story explained:

A court-appointed expert in the lawsuit over the Bayer CropScience methyl isocyanate unit should be disqualified because his report is based largely on a study prepared by an expert witness hired by Bayer’s lawyers, an attorney for Kanawha Valley residents who are suing Bayer argued in a motion filed Thursday.

William DePaulo, the residents’ lawyer, alleged that Bayer violated court guidelines by having repeated and “grossly inappropriate” private discussions with the court’s expert, Texas A&M engineer Sam Mannan. DePaulo alleged that Mannan “incorporated as his own” conclusions from a draft report provided to him by Bayer.

DePaulo said that he had found no evidence of “intentional misconduct,” by Mannan, but that the situation creates the appearance of impropriety.

“The public trust is destroyed by the appearance of impropriety as much as by the reality,” DePaulo wrote. “It is apparent now, if it was not before, that no representations made to this court by Bayer can ever provide the court sufficient comfort to warrant lifting the current injunction.”

Here’s DePaulo’s motion:

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MIC update: Industry lobby wants its say in case

Yesterday’s deadline for the court-appointed expert in the Bayer MIC case came and went, and apparently chemical engineer Sam Mannan did provide his report to the court. Bayer and the residents suing the company got copies.

But so far, U.S. District Judge Joseph R. Goodwin has not seen fit to add a copy of the report to the public file so the rest of the Kanawha Valley can see it. The judge has provided no public explanation for this decision. And the parties are concerned about not irritating the judge, so they aren’t about to release the report unless Judge Goodwin specifically authorizes them to do so.

Mannan is scheduled to testify in open court when the preliminary injunction hearing starts next Monday. Until then, it may be that the public will remain in the dark about his findings.

UPDATED: Judge Goodwin has still not made public his expert’s report on the MIC unit, but the judge did enter this order asking both sides to identify what documents in the case they want to conceal from the public, and explain why they believe those documents can be concealed.

There are two new developments in the case, though.

First, WVDEP Secretary Randy Huffman and his agency’s environmental advocate, longtime People Concerned About MIC leader Pam Nixon, have filed a motion to quash subpoenas in which the residents sought to compel them to appear and testify at the hearing.

In this motion, WVDEP general counsel Judith P. Thomas says that neither Randy nor Pam have first-hand knowledge about how their agency has responded to the U.S. Chemical Safety Board’s recommendations regarding Bayer CropScience’s Institute plant. Thomas says WVDEP put its homeland security director, Mike Dorsey, in charge of that issue, and the agency would produce Dorsey to testify at the hearing.

Second, the industry lobby group American Chemistry Council has filed this “friend of the court” brief arguing against Judge Goodwin issuing a longer-term court order blocking Bayer from resuming production of MIC.

Among other things, that group’s lawyers, Robert Hogan and Tom Heywood, throw back at Judge Goodwin the judge’s own words in tossing out of court most of a  case over DuPont Co.’s contamination of water supplies with the toxic chemical C8:

The potential effects of these chemicals on human health are of great public concern. Issues of institutional competence, however, caution against judicial involvement in regulatory affairs. Courts are designed to remediate, not regulate.

About Judge Goodwin’s chemical plant expert …

UPDATED: Here’s a link to a feature photo from Friday’s Gazette showing the pro-Bayer driving procession yesterday evening.

We broke a story in today’s Gazette detailing the long-standing views of Sam Mannan — the court-appointed expert in the Bayer MIC case — against government regulations to mandate chemical plants more closely consider “inherently safer technologies.”

As we explained:

A chemical engineer appointed to advise U.S. District Judge Joseph R. Goodwin about the safety of Bayer CropScience’s controversial methyl isocyanate unit has consistently opposed new rules that would push companies to reduce the use and storage of large amounts of toxic materials.

Sam Mannan of Texas A&M University has, for nearly a decade, been a critic of efforts by environmental and labor groups to force chemical companies to study and implement “inherently safer technologies” for their manufacturing plants.

Mannan has testified before Congress on the issue several times, warning lawmakers against adopting such language. At Texas A&M, he directs the Mary Kay O’Connor Process Safety Center, which published a 2002 report that industry often cites in criticizing proposals for such regulations.

Last month, Mannan cautioned a House subcommittee that requiring “inherently safer technologies” might sound good, but is more complex than it sounds and could create more problems than it solves. Mannan said there is no widely accepted way of determining what “inherently safer” means, and questioned whether government regulators should try to come up with one.

“There are dangers associated with mandating a specific assessment model, or requiring an overly burdensome assessment regime,” Mannan testified at a Feb. 11 hearing of a House homeland security subcommittee.

For those who want to read more about this, some of Mannan’s congressional testimony is available here and here. And this is a link to his “White Paper” on the topic. My story in our print edition also quoted this testimony from Greenpeace’s Rick Hind and this testimony from former U.S. Chemical Safety Board member Andrea Kidd Taylor.

Based on the White Paper, Mannan’s favorite analogy seems to be comparing implementation of safer technologies at chemical plants — such as storing less of extremely toxic chemicals — to whether you live in a one- or tw0-story house or whether you install stairs in your house:

One of the most common accidents at home is falling on the stairs. A home without stairs, i.e. a onestory bungalow, is inherently safer with regard to falling on stairs than a two-story house. Even if the stairs are equipped with handrails, non-slip surfaces, good lighting, and gates for children, the hazard is still present (Kletz, 1998). Obviously the choice of an inherently safer house implies positive and negative consequences, which may include aesthetics, cost, and other types of hazards. An elevator could reduce the use of stairs but requires a large capital expense. During construction there would be significant hazards to the residents and construction workers and the stairs would still be necessary for emergency egress. Few families would conclude that installing an elevator is the best use of their resources.

And judging from his congressional testimony, Mannan has some, well, interesting ideas about why chemical companies should be careful including their workers in finding ways to protect plants from terrorists:

While I think consultations of employees and involving employees is very important and should be done, but it should be done carefully. There is a two-edged sword there, and one of the issues we deal with in anti-terrorism issues is the insider threat. In my own testimony I provided some statements as to the threat from not only al-Qaida but mutations of the organization of al-Qaida and their associations with organizations that may have ideological or different view, but maybe anti-establishment and may develop a collaboration with al-Qaida type organizations. So insider threat is an issue that is something that we need to be aware of.

OSHA launches inspection at Bayer plant

We’ve just confirmed that the U.S. Occupational Safety and Health Administration earlier this week launched a major inspection at the Bayer CropScience plant in Institute, W.Va.

Inspectors began their work on Wednesday. The probe is being conducted by a team of OSHA inspectors that includes two members of the agency’s Health Response Team from Salt Lake City, Utah.

OSHA spokeswoman Lenore Uddyback-Fortson said the review is a follow-up inspection and is part of the agency’s Chemical National Emphasis Program, which focuses on facilities that release highly hazardous chemicals.

Uddyback-Fortson said inspectors will determine the scope of their work as they progress, but that the review will examine Bayer’s newly redesigned MIC unit.

But, the inspection may not be much help in resolving the lawsuit pending before Chief U.S. District Judge Joseph R. Goodwin over whether Bayer should be allowed to restart the MIC unit.  I asked when OSHA would be done with the inspection and make the results known to the public, and Uddyback-Fortson said only that the law gives OSHA six months to finish an inspection:

The inspection must be concluded by September 2, 2011.

Judge Goodwin scheduled a hearing on the case to start March 21.

Recall that the U.S. Chemical Safety Board had recommended that both OSHA and the EPA conduct comprehensive inspections of the Bayer plant prior to the MIC unit restarting. And, Bayer paid a $143,000 fine for violations cited by OSHA after the August 2008 explosion and fire that killed two Institute workers.

What could have happened in August 2008?

Photo by Tom Hindman, Charleston Daily Mail, via the AP

We broke the story in today’s Gazette about a long-secret U.S. Chemical Safety Board study that examined what could have happened on Aug. 28, 2008, at the Bayer CropScience plant in Institute.

As we explained in our story:

Thousands of people living within four miles of the Bayer CropScience plant in Institute could have been exposed to potentially harmful levels of methyl isocyanate if the contents of an MIC tank located near an August 2008 explosion had been released, according to a government study obtained by the Gazette.

Residents closest to the plant — those within a mile of the sprawling facility — could have been exposed to MIC concentrations that are classified as “immediately dangerous to life or health,” according to the study from the U.S. Chemical Safety Board.

The study, obtained under the Freedom of Information Act, examined the potential toxic plume if 13,700 pounds of MIC escaped in a leak from the plant.

In the 23-page report, CSB consultants from the firm TAI Engineers concluded that a much smaller leak of 560 pounds of MIC would have created a “toxic endpoint” that was nearly three miles from the Bayer plant.

The backdrop here is important, both concerning what was happening at the time the study was performed and what’s happening now that the CSB study has finally seen the light of day.

Next month, Chief U.S. District Judge Joseph R. Goodwin will hold a hearing to consider a request from 16 Kanawha Valley residents for a longer-term court injunction blocking Bayer from resuming MIC production for 18 months prior to ending all manufacture, use and storage of that deadly chemical. An important part of the case is what the impacts would be on area residents, especially those living closest t the plant, from any significant release of MIC.

At the time the study was performed, CSB investigators were warning Congress that the proximity of the methomyl-Larvin explosion to the plant’s MIC “day tank” could have been disastrous. CSB Chairman John Bresland told lawmakers:

Following Bhopal, other companies moved to inherently safer technologies that largely eliminate MIC storage. Bayer is the last company that still stores large quantities of MIC.

Approximately 80 feet to the southwest of the Methomyl residue treater, there is a 37,000-pound capacity MIC storage tank, which contained almost seven tons of MIC on the night of the accident. During the explosion, metal projectiles weighing up to a hundred pounds flew in all directions. Some landed near the MIC tank.

If the MIC tank had been damaged by a powerful projectile – or by the residue treater vessel itself, which had a great deal of energy – there might have been a catastrophic impact on workers, responders, and the public.

In their own report, House committee staffers concluded:

The explosion at Bayer’s plant was particularly ominous and unnerving because a “residue treater” weighing several thousand pounds rocketed 50 feet through the plant, twisting steel beams, severing pipes, and destroying virtually everything in its path. Had this projectile struck the MIC tank, the consequences could have eclipsed the 1984 disaster in India.

The CSB study released under the Freedom of Information Act was dated the day prior to the Congressional hearing — and three days prior to the CSB’s own public hearing on April 23, 2009, in Institute.

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Bayer MIC update: Questions and answers

As we first reported yesterday, Chief U.S. District Judge Joseph R. Goodwin has extended his temporary restraining order on MIC production at Bayer CropScience’s Institute plant until March 28. The move allows time for a court-appointed engineer to review the MIC unit and help Goodwin sort out if a longer-term injunction is warranted.

Meanwhile, a few readers of this blog have criticized the Gazette’s coverage of the whole controversy around the plant, and one reader yesterday provided a list of specific questions that I thought I would try to answer here …

1. What are considered to be safe ways of handling MIC (from a scientific perspective not a lawyer or judge’s perspective)?

After Bhopal, other companies, including DuPont, concluded that the best way to handle MIC was to make it as it was needed, so as to avoid storing large amounts of it on site, as the Institute plant continued to do for many years.

2. If the explosion of 2008 was so close to the MIC tank…why aren’t we all dead? This is a credible question if you’re going to keep citing the Bhopal accident…again not Bayer but you cite so we should have an answer.

Then-Chemical Safety Board Chairman John Bresland explained in Congressional testimony that the residue treater that exploded flew in the opposite direction from the MIC “day tank,” and that perhaps only by chance did it not instead go shooting directly at the day tank, potentially causing a catastrophic accident.

3. What are the processes that would keep us safe during the start up of the MIC unit?

Bayer has said:

“In the meantime, it is important that the community know about the extensive efforts we have implemented to ensure the safe start up and operation of the new production unit. First and foremost, we’ve invested more than $25 million in new production, safety and communications equipment. We have completed our planned reduction of methyl isocyanate storage by 80 percent and have eliminated all above-ground storage. The employees responsible for this operation have undergone extensive process and safety training associated with these operations.

“All of these efforts — as well as numerous process and safety reviews along the way, including one recently completed by third-party experts — have led to our assurance of a safe operation. We are fully dedicated to a safe startup of these operations and remain confident that we will meet our own high expectations, as well as those of our neighbors and community.

However, Judge Goodwin found it “remarkable” that some of the company’s safety procedures and important steps toward a safe start-up of the unit had not been completed just seven days before Bayer planned to continue making MIC.

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Bayer MIC suit heats up as Friday hearing nears

Gazette photo by Kenny Kemp

As Friday’s big hearing approaches before U.S. District Judge Joseph R. Goodwin, things are heating up regarding whether Bayer CropScience should be allowed to restart the methyl isocyanate at its Institute plant.

A group of hourly employees from the Bayer plant have taken out an advertisement on Charleston Newspapers’ Web sites that promotes their view that the plant is safe and all this stuff about MIC creating a potential disaster is nonsense. Headlined, “You need to know the truth from the hourly employees of the Institute plant,” the ad says:

We are the hourly employees of Bayer Crop Science in Institute. We are the people who sit next to you at the ball game, our children or grandchildren may go to school together with yours. We are the neighbor you shop with at the grocery store. We are the volunteer firemen at your local station. You see us every day, yet may not even be aware we live and work in this community to provide for our families, just like you.

We have lived here most of our lives, and a lot of us were raised by parents who also worked in the chemical industry. We have more years experience and knowledge of the chemical industry in the Kanawha Valley (once kn own as the chemical center of the world) than anyone else. Most importantly, if anything goes wrong at our site, we are the first ones in the line of fire. Most of us knew the men we lost personally. The focus should not have been taken away from these men and placed on MIC or anything other than the prevention of another similar incident. The cause and prevention of any accident has and always will be our primary focus. Over 50% of the employees at this site have more than 25 years experience here.

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Bayer update: Residents seek longer-term injunction

Action continues in the legal case over Bayer CropScience’s plan to restart the MIC unit at its sprawling chemical plant out in Institute, W.Va.

Already, U.S. District Judge Joseph R. Goodwin has issued a 14-day temporary restraining order that blocks Bayer from resuming MIC production until the judge can have a full hearing on the lawsuit brought by 16 Kanawha Valley residents.

Now, the residents have also filed a motion for a preliminary injunction, which if granted would provide them with longer-term court relief from any restarting of the MIC unit.

A hearing on that motion is scheduled for Feb. 25.  Stay tuned …