In August 2008 a chemical plant in West Virginia exploded, killing two employees and raising fears of a Bhopal-like toxic chemical leak. A federal investigation into what happened is being conducted but the results might not see the light of day because the chemical company has invoked a terrorism related law to silence what it says is “sensitive security information.’ This leaves the Fed muzzled by its own law. Chemical Safety and Hazard Review Board chairman John Bresland explains the impact on the public’s right to know.
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BOB GARFIELD: In August 2008, an explosion rocked a chemical plant in Institute, West Virginia. It killed two plant employees and raised fears of local residents, who had cause to worry. The Bayer CropScience plant there is reportedly the twin of the Union Carbide facility in Bhopal, India that killed thousands in the aftermath of a toxic chemical leak in 1984, one of the worst industrial accidents in history. Enter the U.S. government and its Chemical Safety and Hazard Investigation Board. The board wields power solely by investigating such events and then making its findings public. But last month, just as it was about to release the first phase of its findings at a public forum, the board was instructed not to disclose at all. Bayer had invoked a seldom-if-ever-used part of the post-9/11 antiterrorism law claiming that details of the explosion are, quote, “sensitive security information.” Thus the Feds have been muzzled, at least in part, by their own law. The case has piqued the interest of Congress, which plans to look into the matter on April 21st, but the board remains anxious that the public may still be left in the dark. John Bresland is the chairman and CEO of the Chemical Safety and Hazard Investigation Board. He joins us. John, welcome to the show.
JOHN BRESLAND: Thank you.
BOB GARFIELD: Tell me first about the board. What is its mandate and what authority, power does it have?
JOHN BRESLAND: Well, the easiest way to describe the Chemical Safety Board is to think of the National Transportation Safety Board. They do the major plane crashes, railroad accidents, major car crashes. We do exactly the same thing as they do except we do it for oil refineries and chemical plants. And our mission is really to investigate major accidents and come up with recommendations, conclusions as to what happened, and, most importantly, make the information public.
BOB GARFIELD: Now, the death of two workers is by no means trivial, but the notion of an explosion at a Bhopal twin must have been terrifying to people in your shop.
JOHN BRESLAND: I live in West Virginia, and I knew that because of the history of the facility there was going to be a lot of community interest in this accident, probably more community interest than any other accident that we have investigated. And I believe that has turned out to be correct.
BOB GARFIELD: Your board was preparing to issue an interim report -
JOHN BRESLAND: Correct, yes.
BOB GARFIELD: - a kind of mid-investigation report.
JOHN BRESLAND: Yeah.
BOB GARFIELD: And along comes Bayer CropScience and its lawyers to say what?
JOHN BRESLAND: They came along and said, we have supplied a lot of information to you. You as a government agency have the right to receive that information. However, the Coast Guard has told them that that information, under the Maritime Transportation Safety Act, is called sensitive security information and cannot be disclosed to the public.
BOB GARFIELD: [LAUGHS] And you said, the Maritime, what, who? Coast Guard, what? Had you ever heard of this thing before?
JOHN BRESLAND: Well, we knew that since 9/11 a couple of different things have happened. One MTSA had been passed, but we didn't pay much attention to it. It wasn't something that really enters into any of our thinking when we're doing investigations.
BOB GARFIELD: But Bayer said it was relevant because their facility has a dock on the Kanawha River there and, therefore, qualifies under Coast Guard jurisdiction.
JOHN BRESLAND: Correct. And they went to the Coast Guard, and the Coast Guard, according to Bayer, agreed with them. And Bayer then came to us and said, if you go to the public meetings there’s certain information that you cannot disclose.
BOB GARFIELD: Well, let me ask you for a moment to distance yourself from the particulars of this case and look at the principle at issue. Do security considerations ever trump the public’s right to know about what dangers may be lurking in their very communities?
JOHN BRESLAND: Well, from our perspective we have no interest at all in our investigation in what would be considered security aspects of their operation. How many guards do they have? Are the guards armed? How high are their fences? What sort of security cameras do they have? That’s got nothing to do with what we're doing, which is investigating the technical details of what happened inside the plant on the evening in question.
BOB GARFIELD: But if there’s a methyl isocyanate tank within a stone’s throw of the explosion site and another underground tank that can hold three times the amount of poison that killed so many people in India 25 years ago, I guess that’s something that the residents of Institute have a right to know, no?
JOHN BRESLAND: Yes, and that information actually is publicly available right now. All you have to do is go to an EPA reading room and ask to see the document that’s called their Risk Management Plan. And any citizen can get that information. It’s readily available. So there’s nothing secretive about it.
BOB GARFIELD: The Chemical Safety and Hazard Board doesn't have a whole lot of power. You know, it can't issue fines. You know, I don't even know if you have subpoena power. But your whole raison d’etre is to investigate and report on industrial accidents. You’re Paul Revere. The British are coming.
JOHN BRESLAND: Oh. [LAUGHS]
BOB GARFIELD: You’re put on your horse and you’re told, go from town to town – but don't say anything.
JOHN BRESLAND: It’s very frustrating for us to be put in this position where you’re not allowed to disclose - or people say you’re not allowed to disclose – what we consider to be appropriate information. Just listing the chemicals that they have and the amounts of the chemicals and the causes of the explosion, it just doesn't make sense to me.
BOB GARFIELD: You know, in fairness to Bayer, considering what happened in Bhopal and considering the terror climate under which we live today, you know, they could be excused for being a little nervous about more people rather than fewer knowing about the location of methyl isocyanate tanks in their plant in Institute, no?
JOHN BRESLAND: I think the other point to bring up is that there are many chemical plants in the United States. There are 150 oil refineries. I worked in the chemical industry for many years. These chemical plants have a certain level of hazard that’s been dealt with, hopefully appropriately. What we worry about as an agency is that if this particular situation is allowed to continue, every time we do an investigation at a chemical plant that might be covered by either the MTSA rules or the chemical plant security rules, they're going to say, you can't tell anybody about this. And we as an agency would be stymied in doing our job and the public would be the worse.
BOB GARFIELD: Chairman Bresland, thank you very much.
JOHN BRESLAND: Okay, thank you.
BOB GARFIELD: John Bresland is the chairman and CEO of the Chemical Safety and Hazard Investigation Board. The board’s West Virginia presentation is scheduled for April 23rd. We contacted Bayer CropScience for a statement and it says it remains committed to open dialogue and to cooperating with the Chemical Safety Board. As for discussing the so-called sensitive security information, Bayer CropScience says, quote, “Manufacturers in the United States are required by law to identify certain sensitive security information about their sites’ processes and procedures. It is up to the United States Coast Guard and the Department of Homeland Security, not the manufacturers, to ultimately determine what is sensitive security information. Then the manufacturer is obligated to keep such designated information confidential for security reasons. Our company has and will continue to adhere to the law.”
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