Secrecy Shuts Down Briefing on 2008 Chem Accident

Government safety investigators canceled a public briefing about an August 28, 2008 explosion that killed two persons at a chemical plant in Institute, West Virginia after operators of the plant said that public discussion of the accident could jeopardize “sensitive security information.”

Bayer CropScience, which runs the plant, told the U.S. Chemical Safety Board that relevant information about the plant is protected from public disclosure under the terms of the Maritime Transportation Security Act of 2002, as interpreted by U.S. Coast Guard regulations.

The Board, which is an independent federal agency that investigates industrial accidents, canceled the March 19 public meeting while it seeks to evaluate the Bayer secrecy claims.  See “Board Cancels Hearing Under Bayer Pressure” by Ken Ward, Jr., The Charleston Gazette, February 25, 2009.

On their face, the Bayer secrecy claims do not seem well-founded.

The Maritime Transportation Security Act (pdf) invoked by Bayer states (at section 70103) that certain facility security information “is not required to be disclosed to the public.”  That apparently means its disclosure cannot be compelled under the Freedom of Information Act, but it doesn’t say that disclosure of such information is prohibited.

Coast Guard regulations (pdf) implementing the Act state that the plant information could be “sensitive security information,” which is protected from public disclosure.  But compliance with those regulations is binding only on “covered persons,” a category that does not include the U.S. Chemical Safety Board.

So these provisions would appear to have little relevance to this case, and to impose no non-disclosure obligations on the Chemical Safety Board.

“The whole purpose of these homeland security rules is supposed to be to increase public safety, not to reduce it,” said one federal official who expressed skepticism regarding Bayer’s reading of the secrecy requirements.

“We deserve the right to know in a timely manner what is happening in our community that could have such major effects on our health and safety. We also deserve the right to tell you our concerns and so inform the remainder of this investigation,” wrote Maya Nye of People Concerned About MIC [methyl isocyanate] and a coalition of other citizens groups in a letter to the Board this week.

A decision on how the Chemical Safety Board will proceed in this case is pending.

Meanwhile, the Bayer CropScience plant was cited last week for multiple violations by the Occupational Safety and Health Administration.  See “Bayer Plant Cited for 13 Serious Violations Including Safety Issues” by Tony Rutherford, Huntington News, February 27, 2009.