Sustained Outrage

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:

Continue reading…

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.

Convicts and nursing homes

As pointed out, the Office of Inspector General just released a study that found that 92 percent of nursing homes employ a person with a criminal conviction, and almost half employ five or more people with convictions.

Now, not all of these convictions were of the sort that preclude a person from working at a nursing home, such as having abused, neglected or mistreated a nursing home resident. (These can vary from state to state.) The study broke the convictions down by broad category: 43.6 percent were crimes against property; 26.4 percent were “other”; 20.3 percent were DUIs; 16.2 percent were drug-related; 13.1 percent were crimes against persons; 11.9 percent were driving crimes besides DUIs. (Those numbers don’t add up to 100 percent because some people qualified in more than one category.)

The study noted:

Our estimate of the number of nursing facility employees with criminal convictions relies entirely upon the accuracy of the information contained in FBI’s Interstate Identification Index. Because the Interstate Identification Index relies on local, State, and Federal law enforcement agencies to report criminal records, it is possible that not all criminal history record information was accurate and up-to-date.

The criminal history record information we received from FBI suggested that the records did not contain all of the convictions for particular employees. For example, criminal history record information contained notations of probation violations (suggesting that a conviction occurred), but the record did not contain the convictions leading to the imposition of probation periods. In addition, many charges had no corresponding disposition information (e.g., conviction, dismissal), so we could not determine whether a conviction occurred. Finally, it is possible that some individuals’ records did not contain convictions because they were removed following a judicial diversion program (e.g., completion of an alcohol and substance abuse education course).

Our estimates are conservative because we did not include criminal convictions if we could not conclusively identify the individual (e.g., if identifiers were similar but did not exactly match). Also, we could not confirm that the information that nursing facilities provided us was accurate or that the information the employees provided to the nursing facilities was accurate.

FBI-maintained criminal history records do not contain detailed information (i.e., whether the victim of a crime was a nursing facility resident) to determine whether a conviction disqualifies an individual from nursing facility employment under Federal regulation.

West Virginia is one of 33 states that requires a statewide criminal background check, but not one of the 10 that requires both a federal and statewide check.

The study recommended that the Centers for Medicare & Medicaid Services (CMS) develop background check procedures:

To ensure that States conduct background checks consistently, CMS should (1) clearly define the employee classifications that are direct patient access employees and (2) work with participating States to develop a list of State and local convictions that disqualify an individual from nursing facility employment under the Federal regulation and periods for which each conviction bars the individual from employment.

The U.S. Environmental Protection Agency today issued an interesting report that concluded:

In 2010 alone, the reductions in fine particle and ozone pollution from the 1990 Clean Air Act amendments prevented more than:

— 160,000 cases of premature mortality

— 130,000 heart attacks

— 13 million lost work days

— 1.7 million asthma attacks

By 2020, the study projects benefits will be even greater, preventing more than:

— 230,000 cases of premature mortality

— 200,000 heart attacks

— 17 million lost work days

— 2.4 million asthma attacks

According to the study:

… The direct benefits from the 1990 Clean Air Act Amendments are estimated to reach almost $2 trillion for the year 2020, a figure that dwarfs the direct costs of implementation ($65 billion).

EPA Administrator Lisa P. Jackson said:

The Clean Air Act’s decades-long track record of success has helped millions of Americans live healthier, safer and more productive lives. This report outlines the extraordinary health and economic benefits of one of our nation’s most transformative environmental laws and demonstrates the power of bipartisan approaches to protecting the health of the American people from pollution in our environment.

Who writes the prescriptions?

Last week, the Center for Public Integrity published an interesting piece that noted that fraud in the form of misuse of doctors’ ID numbers is so rampant that Medicare cannot identify the top prescribers of certain drugs, particularly Ritalin and oxycodone, both of which are addictive and prone to be abused.

According to a U.S. Department of Health and Human Services Office of Inspector General (OIG) report released last week , the Centers for Medicare and Medicaid Services are not checking to make sure that prescriptions paid by the health insurance plans that contract with Medicare are written by real doctors.

The new report, based on 2007 data, said invalid physician prescriber numbers are so common in Medicare records that the program cannot identify the doctors who prescribed the most oxycodone and Ritalin. Both are highly addictive and frequently trafficked on the street.

The OIG also said the Centers for Medicare and Medicaid Services could not indentify the second-highest prescriber of methadone, a drug used to treat heroin addiction that is also sometimes diverted to street markets. The new report, which supplements a similar effort published by the OIG last June, focuses just on drugs with potential for abuse, which are known as Schedule II.

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 …

Hearing set for Thursday on MIC lawsuit

Word just in that U.S. District Judge Joseph R. Goodwin has scheduled a hearing for  tomorrow (Thursday) to consider whether Bayer CropScience should be temporarily blocked from restarting the methyl isocyanate unit at its Institute plant.

The hearing is set for 2 p.m. in U.S. District Court here in Charleston.

If you missed it, we had a story on today’s Gazette about the case, and posted a copy of the lawsuit here. As we reported:

Among other things, the suit asks for a court order to block Bayer from resuming production of MIC until comprehensive plant inspections are conducted by the U.S. Environmental Protection Agency and the federal Occupational Safety and Health Administration.

The Institute plant’s stockpile of MIC — for years the plant stored a quarter-million pounds of the chemical on site — has been a focus of concern for many valley residents since December 1984, when a leak of the chemical killed thousands of people near a Union Carbide plant in Bhopal, India.

Bayer is in the process of restarting the MIC unit after a significant modification project, but plans to operate it for only about 18 months before it stops making, using or storing the chemical at its Institute plant.

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

Bayer lawyers have not yet filed any papers responding to the lawsuit, but plant spokesman Tom Dover issued this follow-up statement today:

Bayer CropScience has received a copy of the court filings, and they are under review. 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. And we have established several new safety and communications processes, working closely with Metro 911, the KPEPC, and others. 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.

I asked Dover if I could interview someone from the plant who is overseeing the restart of the unit, or if the company would make public this “third party” safety review referred to in his statement. I haven’t heard back yet…


I still haven’t heard back from Tom Dover on my request, but last evening Bayer lawyers filed this legal brief responding to the brief the residents’ lawyer filed in support of their motion for a Temporary Restraining Order.

Of course, the lawsuit accuses Bayer not only of  “chronically reckless operation” of the plant, but also of “admitted dishonesty in public communications” with residents of the Kanawha Valley.”

Readers may recall that Bayer CEO William Buckner testified before a congressional committee that his company tried to use homeland security regulations to avoid “negative publicity” about the August 2008 explosion that killed two plant workers:

There were, of course, some business reasons that also motivated our desire for confidentiality. 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.

Also, the U.S. Chemical Safety Board has noted how Bayer stonewalled local emergency responders seeking information about the incident and misled local residents when company officials insisted that no dangerous chemicals were released, when in fact key monitors at the plant weren’t working the night of the incident.

CSB investigators, of course, found that the fatal explosion never had to happen, if Bayer had operated its plant properly. Here’s the agency’s video of what happened:

Unwanted sex behind bars

A new report from the Bureau of Justice Statistics, Sexual Victimization Reported by Adult Correctional Authorities, 2007-2008, paints a grim picture of sexual assault and abuse behind bars. According to the report, the number of total allegations increased 19 percent — from 6,241 to 7,444 — between 2005 and 2008, the last year figures are available. Allegations of inmate-on-inmate abusive sexual contacts account for 2/3 of that increase.

In addition, prisons account for most of the increase between 2005 and 2008. Allegations in state prisons increased by 20 percent, while allegations in federal prisons jumped 37 percent (although the federal prison population is much, much smaller).

Of course, there’s a big difference between an allegation and a substantiated rape or assault. While the overall number of substantiated allegations has remained pretty steady, increasing by 5 percent between 2005 and 2008, the number of verified claims in prisons — state and federal — has grown by 24 percent over the same period. In 2008, 12.5 percent of all total allegations were substantiated, or one in eight.

Of the substantiated incidents, 54 percent were inmate-on-inmate, while 46 percent were staff-on-inmate. Of the verified inmate-on-inmate complaints, roughly 12 percent involved two or more assailants. This was more likely to be the case in jails (14 percent) than in prisons (nine percent).

Not surprisingly, women represented a disproportionately large percentage of victims. Women make up only seven percent of the prison population, yet they represented 21 percent of the victims of inmate-on-inmate incidents and 32 percent of the victims in staff-on-inmate offenses in prisons. Similarly, only 13 percent of jail inmates are women, but they were the victims in 32 percent of the inmate-on-inmate and 56 percent of the staff-on-inmate abuses in jails.

All this information comes at a time when the jail and prison population in America is very near its highest numbers ever. (The total of incarcerated prisoners shrank by 0.7 percent in 2009, but the imprisonment rate is still more than 500 inmates per 100,000 Americans, which is very high.)

CSB praises W.Va. response to Ghent disaster

Four people were killed and five others were seriously injured when propane vapors from a storage tank ignited and exploded at the Little General convenience store and gas station in Ghent, West Virginia. Propane was used as fuel inside the building, which was destroyed.

Another W.Va. related announcement just in from the U.S. Chemical Safety Board:

CSB Chairperson Rafael Moure-Eraso today commended West Virginia for its effecctive response to a CSB recommendation that propane technicians in the state be trained, certified, and licensed.

The Board issued the recommendation to the governor and legislature following the CSB investigation of a propane explosion at the Little General Store in Ghent, West Virginia on January 30, 2007. The explosion killed four people and injured five others seriously. The CSB found that a junior propane service technician was preparing to transfer propane, unsupervised, from an old to a new tank located next to an outside wall of the store. The technician removed a safety plug from a malfunctioning liquid withdrawal valve, causing an uncontrollable release of propane. Propane entered the store through the rest room ventilation system. The technician had only 45 days of limited on-the-job training with his supervisor.

Dr. Moure-Eraso said, “The Board has voted to designate West Virginia’s response as ‘Closed-Acceptable Action,’ meaning that the state’s action fully meets the intent of our recommendation. By taking this action, the state assures that anyone working with liquefied petroleum gas systems in the state – from installation to maintenance – will be fully qualified, and that means lives will be saved and we will greatly reduce the risk of a recurrence of the Ghent tragedy.”

The CSB recommendation urged the state to “Require training and qualification of individuals who operate bulk propane plants, dispense and deliver propane, install and service propane systems, and install propane appliances.” The CSB recommended this training be equivalent to the Certified Employee Training program (CETP) developed by the propane industry. The CSB investigation found many employers in the industry use CETP to train and certify employees on a number of topics including safe work practices during delivery and installation of propane tanks for homes, businesses, and bulk shipping. The bill approved by the West Virginia legislature requires completion of CETP for anyone working with liquefied petroleum gas systems in the state.

The requirements of the bill went into effect on July 1, 2009, and the State Fire Marshal’s office reported to the CSB that the code was updated in June 2010 to implement the legislative mandate requiring certification and licensing.

Dr. Moure said, “Propane is highly flammable and potentially hazardous. To ensure public safety, propane must be handled only by qualified and experienced technicians. I compliment all those in West Virginia who worked to accomplish passage of the legislation.”

While the Kanawha Vally ponders the loss of 220 jobs at the Bayer CropScience plant in Institute, it’s worth noting that this isn’t the only place Bayer is cutting its workforce.   Back in November, the Bayer parent company announced:

Bayer plans to invest its resources even more systematically in growing the company and enhancing its innovative capability. The focus will be on researching, developing and marketing new products, particularly in HealthCare and CropScience, and on expanding activities in the emerging markets. This will require a high level of investment in the coming years. However, sales and earnings are under pressure from generic products, rising development costs and the effects of health care reforms.

What’s that mean? Read on:

In connection with this program, it is planned to reduce the global headcount of 108,700 by an aggregate of about 2,000 by 2012. Approximately 4,500 positions – including roughly 1,700 in Germany – are to be cut, while some 2,500 new jobs will be created over the same period, particularly in the emerging markets.

Also worth considering in the wake of Bayer’s announcement this week is this commentary by West Virginia Media President Bray Cary, who you would hardly describe as some anti-job environmental extremist:

For too long, we were a community held hostage by “what if,” and in 2008, when a deadly explosion rocked that plant and killed two men, we got far too close to a tragedy of epic proportions.

It’s disheartening to know that some of our own are going to lose their job because of this, and you’ll never find a bigger proponent of economic development than me, but no paycheck is worth a life.