CONTINUATION: Citizens Federal Complaint against Bayer ref: MIC

Special to HuntingtonNews.Net

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF WEST VIRGINIA CHARLESTON DIVISION

STATEMENT OF FACTS CONTINUED

16.         As noted, on August 28, 2008, Bayer failed to comply with the critical NIMS requirement that  the  Incident  Commander  immediately  report  to  local  emergency  preparedness  personnel  the explosion  and  release  of  toxic  chemicals,  so  local  officials  could  determine  what  course  of  action (shelterinplace,  evacuation,  etc) was appropriate  for the safety  of the citizens  of Kanawha  County, West Virginia.

 The first Metro 911 notification reporting an explosion at the Bayer plant was called in at 10:33  p.m.    Over  the  following  eight  hours,  Bayer  only  communicated  with  Metro  911  and  other emergency responders through the security guard at the gate, identified only as “Steve. “Steve would only confirm that there was an emergency at the plant,  that an ambulance was needed at the main gate for a burn victim, and that Metro 911 should “alert the public. Even though a sheriff’s officer learned that the incident occurred in the Larvin unit by 11:00 p.m., Bayer would not release that informationThis left local and state officials to coordinate amongst themselves what actions to take to protect the public without any information from Bayer about the nature or scope of the emergency, the expected duration  of the emergency,  the possibilities  of further explosions,  and what chemicals  were released into the air that night and in what quantities.      This miscommunication  continued after the August 2008 explosion incident to an October 2008 leak of MIC

17.           Bayer has admitted that it intentionally, and in bad faith, obstructed the efforts of publiofficials charged with the safety of Kanawha County citizens to understand the threats facing them after an incident at the plant, or even the existence of such threats at the moment of greatest vulnerability, through a deliberate pattern and practice of concealing vital information from the public and from the plant’s closest neighbors. In testimony for the Hearing on Secrecy in the Response to the Fatal Bayer Chemical Plant Explosion on April 21, 2009, before the House Committee on Energy and Commerce, Subcommittee on Oversight and Investigations, Bayer’s President and Chief Executive Officer, William Buckner,   made   perfectly   clear   the   motivations   behind   his   companys   use   and   concealment   of information:

 

 

There were several reasons why the company sought confidentiality and SSI protection, including legitimate security concerns, the proper scope of the CSBs investigation, and, we frankly admit, the desire to avoid  making  the  controversial  chemical  MIC  part  of  the  public debate regarding the incident. 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. In any such debate, we believed that because of security concerns, we would have been prevented from a full public defense of our safety and security measures  and the multiple  layers of protection  we employ  for our MIC   processes.   However,   we   concede   that   our  pursuit  of  SSI coverage was motivated, in part, by a desire to prevent that public debate from occurring in the first place.

18.         In response  to an August 10, 2010 finding  by EPA that the production  of aldicarb  no longer met the Agencys food safety standards and may pose unacceptable dietary risks to infants and young children, EPA initiated action to terminate uses of aldicarb, and to revoke aldicarb tolerances, to which Bayer acquiesced in a Memorandum of Understanding.

 

19.         On  January  11,  2011  that  it would  eliminate  220  of nearly  700  jobs  at the  Institute facility, and terminate  the production  of MIC entirely  by mid2012.   (EXHIBIT  Q) However,  also on January  11,  2011,  Bayer  announced  that  it  had  completed  its  rebuilding  of  the  MIC  manufacturing facility  in  Institute,  West  Virginia,  claiming  that  it  had  complied  with  unspecified  initialrecommendations  of the CSB.   Bayer also stated its intention  to resume  the production  of MIC, in a facility that eliminated the aboveground storage of MIC --   for the next 18 months --   after which it would cease all MIC operations.

20.           Importantly,  Bayer  did  not redesign  the  MIC  production  facility  in conformity  with  a Dupont facility in Texas, which minimizes the production of MIC until needed for a chemical process and immediately  consumes  the  manufactured  MIC,  eliminating  the  need  for  any  onsite  storage.     To Plaintiffs knowledge, the new process for MIC at Bayer’s current facility has never been employed at any  location  in  the  United  States,  or  anywhere  else;  its  startup  is,  for  all  practical  purposes,  an uncontrolled experiment being conducted in a major population center in which 300,000 citizens reside.

21.         A CSB review of the alternative methods for production of MIC discloses that numerous alternatives to the procedures historically employed at the Institute facility have been considered and either  discarded  because  of  the  economic  costs  of  the  alternative,  or  never  carried  through  to completion  because  of the  multiple  changes  in ownership  and  management  of the  Institute  facility.  And, as noted, the NAS has not completed its own Congressionally mandated study of the inherent risks of manufacturing MIC in a major population center.

22.           Both the Occupational Safety and Health Administration (OSHA) and the Environmental Protection  Agency  (EPA)  had  conducted  process  safety  related  audits  and  inspections  at  the  Bayer facility prior to the incident in August 2008. However, the inspections did not correct all the serious, longstanding process safety problems that were revealed by investigations conducted after the incident. Despite full authority to inspect and a mandatory duty to enforce the labor laws of the United States, OSHA has not inspected, and does not intend to inspect, Bayer’s MIC production facility in Institute, WV since the modifications of the plant announced on January 11, 2001 to determine that Bayer’s claimed improvements  since  the  August  28,  2008  explosion  conform  with  applicable  law  and  do  not  place American workers at an unreasonable risk of serious bodily injury and/or loss of life.

23.         OSHA cited Bayer for deficient process hazard analyses in 2005; however OSHA did not subsequently verify that corrective actions were fully implemented by Bayer, and deficient PHAs were a causal factor in the August  2008 incident.  Despite  full authority  to inspect  and a mandatory  duty to enforce the environmental  laws of the United States, EPA has not inspected,  and does not intend to inspect, Bayer’s MIC production facility in Institute, WV since the modifications of the plant announced on  January  11,  2001  to  determine  that  Bayerss  claimed  improvements  since  the  August  28,  2008 explosion  conform with applicable  law and do not place American citizens at an unreasonable  risk of serious bodily injury and/or loss of life.

 

 CAUSE OF ACTION: http://www.prosepoint.net/site/64/1573

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