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SECRECY IN THE RESPONSE TO BAYER’S 

CHEMICAL PLANT EXPLOSION 

HEARING 

BEFORE THE

SUBCOMMITTEE ON OVERSIGHT AND 

INVESTIGATIONS 

OF THE

COMMITTEE ON ENERGY AND 

COMMERCE 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED ELEVENTH CONGRESS 

FIRST SESSION 

APRIL 21, 2009 

Serial No. 111–28 

( 

Printed for the use of the Committee on Energy and Commerce 

energycommerce.house.gov 


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COMMITTEE ON ENERGY AND COMMERCE 

HENRY A. WAXMAN, California, Chairman 

JOHN D. DINGELL, Michigan 

Chairman Emeritus 

EDWARD J. MARKEY, Massachusetts 

RICK BOUCHER, Virginia 

FRANK PALLONE, JR., New Jersey 

BART GORDON, Tennessee 

BOBBY L. RUSH, Illinois 

ANNA G. ESHOO, California 

BART STUPAK, Michigan 

ELIOT L. ENGEL, New York 

GENE GREEN, Texas 

DIANA DEGETTE, Colorado 

Vice Chairman 

LOIS CAPPS, California 

MIKE DOYLE, Pennsylvania 

JANE HARMAN, California 

TOM ALLEN, Maine 

JAN SCHAKOWSKY, Illinois 

HILDA L. SOLIS, California 

CHARLES A. GONZALEZ, Texas 

JAY INSLEE, Washington 

TAMMY BALDWIN, Wisconsin 

MIKE ROSS, Arkansas 

ANTHONY D. WEINER, New York 

JIM MATHESON, Utah 

G.K. BUTTERFIELD, North Carolina 

CHARLIE MELANCON, Louisiana 

JOHN BARROW, Georgia 

BARON P. HILL, Indiana 

DORIS O. MATSUI, California 

DONNA CHRISTENSEN, Virgin Islands 

KATHY CASTOR, Florida 

JOHN P. SARBANES, Maryland 

CHRISTOPHER MURPHY, Connecticut 

ZACHARY T. SPACE, Ohio 

JERRY MCNERNEY, California 

BETTY SUTTON, Ohio 

BRUCE BRALEY, Iowa 

PETER WELCH, Vermont 

JOE BARTON, Texas 

Ranking Member 

RALPH M. HALL, Texas 

FRED UPTON, Michigan 

CLIFF STEARNS, Florida 

NATHAN DEAL, Georgia 

ED WHITFIELD, Kentucky 

JOHN SHIMKUS, Illinois 

JOHN B. SHADEGG, Arizona 

ROY BLUNT, Missouri 

STEVE BUYER, Indiana 

GEORGE RADANOVICH, California 

JOSEPH R. PITTS, Pennsylvania 

MARY BONO MACK, California 

GREG WALDEN, Oregon 

LEE TERRY, Nebraska 

MIKE ROGERS, Michigan 

SUE WILKINS MYRICK, North Carolina 

JOHN SULLIVAN, Oklahoma 

TIM MURPHY, Pennsylvania 

MICHAEL C. BURGESS, Texas 

MARSHA BLACKBURN, Tennessee 

PHIL GINGREY, Georgia 

STEVE SCALISE, Louisiana 

PARKER GRIFFITH, Alabama 

ROBERT E. LATTA, Ohio 

(II)


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(III) 

SUBCOMMITTEE ON OVERSIGHT AND INVESTIGATIONS

BART STUPAK, Michigan, Chairman 

BRUCE L. BRALEY, Iowa 

Vice Chairman 

EDWARD J. MARKEY, Massachusetts 

DIANA DEGETTE, Colorado 

MIKE DOYLE, Pennsylvania 

JAN SCHAKOWSKY, Illinois 

MIKE ROSS, Arkansas 

DONNA M. CHRISTENSEN, Virgin Islands 

PETER WELCH, Vermont 

GENE GREEN, Texas 

BETTY SUTTON, Ohio 

JOHN D. DINGELL, Michigan (ex officio) 

GREG WALDEN, Oregon 

Ranking Member 

ED WHITFIELD, Kentucky 

MIKE FERGUSON, New Jersey 

TIM MURPHY, Pennsylvania 

MICHAEL C. BURGESS, Texas 


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(V) 

C O N T E N T S 

Page 

Hon. Bart Stupak, a Representative in Congress from the State of Michigan, 

opening statement ................................................................................................ 2 

Hon. Greg Walden, a Representative in Congress from the State of Oregon, 

opening statement ................................................................................................ 4 

Hon. Henry A. Waxman, a Representative in Congress from the State of 

California, opening statement ............................................................................. 6 

Hon. Betty Sutton, a Representative in Congress from the State of Ohio, 

opening statement ................................................................................................ 8 

Hon. Bruce L. Braley, a Representative in Congress from the State of Iowa, 

opening statement ................................................................................................ 9 

Hon. Donna M. Christensen, a Representative in Congress from the State 

of Virgin Islands, opening statement ................................................................. 9 

Hon. Edward J. Markey, a Representative in Congress from the Commonwealth of Massachusetts, opening statement .................................................... 10 

Hon. John D. Dingell, a Representative in Congress from the State of Michigan, prepared statement ...................................................................................... 148 

Hon. Michael C. Burgess, a Representative in Congress from the State of 

Texas, prepared statement .................................................................................. 150 

WITNESSES

John Bresland, Chairman, U.S. Chemical Safety and Hazard Investigation 

Board ..................................................................................................................... 12 

Prepared statement .......................................................................................... 14 

Answers to submitted questions ...................................................................... 152 

Michael Dorsey, Chief of Homeland Security and Emergency Response, West 

Virginia Department of Environmental Security .............................................. 33 

Prepared statement .......................................................................................... 35 

Kent Carper, President, Kanawha County Commission ...................................... 38 

Prepared statement .......................................................................................... 40 

Joseph Crawford, Chief of Police, City of St. Albans, West Virginia .................. 56 

Prepared statement .......................................................................................... 60 

Pamela Nixon, environmental advocate with the West Virginia Department 

of Environmental Protection ............................................................................... 65 

Prepared statement .......................................................................................... 68 

James Watson, Director of Prevention Policy for Marine Safety, Security 

and Stewardship, U.S. Coast Guard ................................................................... 89 

Prepared statement .......................................................................................... 91 

William Buckner, President and CEO, Bayer CropScience LP; Nick Crosby, 

Vice President, Institute Site Operations, Bayer CropScience ......................... 95 

Prepared statement .......................................................................................... 97 

SUBMITTED MATERIAL

Hearing memorandum ............................................................................................ 124 


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(1) 

SECRECY IN THE RESPONSE TO BAYER’S 

CHEMICAL PLANT EXPLOSION 

TUESDAY, APRIL 21, 2009 

HOUSE OF REPRESENTATIVES, 

SUBCOMMITTEE ON OVERSIGHT AND INVESTIGATIONS, 

COMMITTEE ON ENERGY AND COMMERCE, 

Washington, DC. 

The subcommittee met, pursuant to call, at 12 p.m., in Room 

2322, Rayburn House Office Building, Hon. Bart Stupak [chairman 

of the subcommittee] presiding. 

Present: Representatives Stupak, Braley, Markey, Christensen, 

Sutton, Waxman [ex officio], Walden, and Burgess. 

Also Present: Representative Capito. 

Staff Present: Karen Lightfoot, Communications Director, Senior 

Policy Advisor; David Rapallo, General Counsel; Theodore Chuang, 

Chief Oversight Counsel; Mike Gordon, Deputy Chief Investigative 

Counsel; Dave Leviss, Deputy Chief Investigative Counsel; Scott 

Schloegel, Investigator, Oversight and Investigations; Stacia 

Cardille, Counsel; Daniel Davis, Professional Staff Member; Jennifer Owens, Special Assistant; Jennifer Berenholz, Deputy Clerk; 

Caren Auchman, Communications Associate; Lindsay Vidal, Special 

Assistant; Julia Elam, Fellow, Kenneth Marty, Detailee ICE; Allison Cassady, Professional Staff Member; Andrew Su, Professional 

Staff Member; Byron Gwinn, Staff Assistant; Alan Slobodin, Minority Chief Counsel; Karen Christian, Minority Counsel; Peter Kielty, 

Minority Senior Legislative Analyst; Peter Spencer, Minority Professional Staff Member; and Jerry Couri, Minority Professional 

Staff Member. 

Mr. STUPAK. This meeting will come to order. Today we have a 

hearing titled ‘‘Secrecy in the Response to Bayer’s Chemical Plant 

Explosion.’’ 

Before we begin with opening statements, I ask unanimous consent that the contents of our document binder be entered into the 

record, provided that the committee staff may redact any information that is business proprietary, relates to privacy concerns or is 

law enforcement sensitive. Without objection, the documents will 

be entered into the record. 

[The information was unavailable at the time of printing.] 

Mr. STUPAK. I ask unanimous consent that the supplemental 

memo prepared by the majority staff be entered into the record. 

Without objection, the documents will be entered into the record. 

[The information appears at the conclusion of the hearing.] 


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OPENING STATEMENT OF HON. BART STUPAK 

Mr. STUPAK. Now the Chairman, Ranking Member and Chairman Emeritus will be recognized for 5 minutes for opening statements. Other members of the subcommittee will be recognized for 

3 minutes for their opening statements. I will begin. 

On August 28, 2008 a tank exploded at the Bayer CropScience 

Chemical Plant in Institute, West Virginia. The explosion sent a 

fireball hundreds of feet into the air and was felt 10 miles away. 

I have here photographs of the accident and its aftermath. The 

explosion captured from a distance, the destruction at the plant— 

do you want to flip that over one—and then a pair of safety goggles 

encased in chemical residue. 

Before I go any further I would like to express on behalf of the 

entire subcommittee our condolences to the families of the two employees, Barry Withrow and Bill Oxley, who were killed as a result 

of the explosion. We acknowledge the tremendous personal sacrifices and pain these people and their families have been put 

through as a result of this tragic incident. 

We also thank the emergency first responders who protected the 

public that night, especially the six volunteer firefighters who suffer from nausea, intestinal and respiratory disturbances as a result 

of the exposure that night. We are tremendously grateful for their 

service and the service of all our public safety personnel. 

Today the committee is examining not only what actually happened but what could have happened. About 80 feet from the blast 

site was a day tank that can store nearly 40,000 pounds of methyl 

isocyanate or MIC. MIC is the chemical that killed thousands of 

people and sickened tens of thousands in 1984 after release of the 

toxic chemical at Bhopal, India. 

The explosion at the Bayer plant in West Virginia caused a 21⁄2- 

ton steel vessel containing methomyl to rupture and to be violently 

propelled in a northeasterly direction, leaving a path of destruction. 

Had the projectile headed south and struck the MIC tank, the subcommittee today might be examining a catastrophe rivaling the 

Bhopal disaster. As it happened, the explosion caused shrapnel to 

damage the protective blast blanket around the MIC day tank. 

Immediately after the explosion, local emergency responders 

tried to obtain crucial information from Bayer representatives, information that was essential to determine how best to protect the 

public and their own personnel from possible chemical contamination. 

For example, the emergency responders were trying to determine 

whether to order the community to shelter-in-place, which is to 

stay in their homes with doors and windows closed. A shelter-inplace order must be announced soon after a chemical release in 

order to be effective. 

The fire department in Nitro, West Virginia reported, ‘‘We have 

a cloud of some type that is dark, it is moving towards Nitro. Can 

you please try to get some information so you can tell us what it 

is?’’ Bayer rebuffed the emergency responder’s effort to obtain information about the explosion. When the 911 dispatcher asked the 

company to confirm whether the explosion took place in the Larvin 

Unit, which contains toxic chemicals, Bayer responded, ‘‘No, that’s 


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all. I’m only allowed to tell you that we have an emergency in the 

plant.’’ 

At least six State and local emergency responders were denied 

entry to the plant to investigate the explosion. As Kent Carper, the 

president of Kanawha County Commission wrote to Bayer a week 

after the explosion, METRO911 repeatedly asked for information 

and was refused. This was a complete abdication of Bayer’s responsibility to your neighbors and to our first responders who were 

sent, uninformed, to an explosion because no one was allowed to inform us. We will hear testimony today from Mr. Carper as well as 

from other officials and representatives of the local community. 

The United States Chemical Safety and Hazard Investigation 

Board, CSB, an independent Federal agency, is conducting an investigation with the goal of reporting to the public on the cause of 

the accident and recommending changes to prevent future accidents like this one. We will hear today from the chairman of the 

CSB on the board’s preliminary findings. 

For the first time during a CSB investigation, a company sought 

to limit CSB’s use of documents and information by labeling it sensitive security information, SSI, under the Maritime Transportation Security Act. Although the law is supposed to prevent the 

public release of information that might compromise national security, Bayer has now admitted that it began using this SSI label in 

part to prevent negative publicity and stymie public debate about 

the safety of its processes. 

William Buckner, the president and CEO of Bayer CropScience, 

says in his written testimony for today’s hearing that Bayer invoked SSI out of ‘‘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 the Institute by changing to alternative technologies.’’ 

One document Bayer produced to the subcommittee, company 

counsel instructed that the assertion of sensitive security information should be liberal and should strike any references to any piece 

of equipment, piping or document involving MIC or chlorine, a 

process that resulted in the marking of thousands of pages of documents. 

Finally, the committee’s investigation has uncovered several 

troubling facts that further raise concerns about an orchestrated effort by Bayer to shroud the explosion in secrecy. Bayer removed 

and destroyed the blast blanket that surrounded the MIC tank, pictured here with the visible damage. There’s the photo up in the top 

part. The whereabouts of this important piece of evidence is unknown. 

Air monitoring devices designed to determine whether MIC has 

been released into the air were not operational on the night of the 

explosion. Video cameras positioned to capture the site of explosion 

did not record the time period of explosion because they had been 

disconnected from the recording unit. 

Bayer’s pattern of secrecy raises questions, not just about Bayer, 

but also about whether the law adequately protects the public’s 

right to have information about potential dangers in their communities and what their communities face and how those dangers 

might be minimized. 


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Today we will ask whether the security sensitive information 

designation system is susceptible to abuse, given the committee’s 

investigation has revealed that a private chemical company—which 

has the most to lose—invoked SSI in part out of business motive 

of limiting public discussion of the fact that it continues to be the 

only company in America that still stores large quantities of methyl 

isocyanate, or MIC, on site. We will also explore ways for companies to employ safer technology to protect their communities so 

tragedies like this do not happen again. 

Next, I turn to Mr. Walden from Oregon for his opening statement, please. 

OPENING STATEMENT OF HON. GREG WALDEN 

Mr. WALDEN. Thank you very much, Mr. Chairman. Before I 

start, I want to recognize our colleague Shelley Moore Capito who 

has joined us today. While I appreciate your allowing her to join 

us on the dais even though she is not a member of this committee 

and therefore is not allowed to participate in the process, we do appreciate her involvement in this issue, since it is in her district, 

and I think maybe even in her hometown. And she has been very 

helpful in providing background information to me and probably 

others on the committee. 

I join you, Mr. Chairman, also in expressing our condolences to 

those who lost their lives, and our praise for public safety officials 

who rose to the challenge on a very difficult night in that part of 

West Virginia. The subject of this hearing revolves around communications and information provided by Bayer CropScience during 

and after the fatal explosion and fire in its Riverside Chemical 

Plant outside of Charleston. 

Our bipartisan investigation leading up to this hearing focused 

on the concerns this single troubling incident has raised among 

first responders, the surrounding community and Federal safety investigators. 

For more than 21 years my wife and I were small business owners out in Oregon. We are in the radio business, and therefore have 

been very closely involved with emergency communication, alerting 

the communities, trying to get information in a timely manner. 

And so as I’ve read some of the background here, obviously there 

are some enormous lessons to be learned about what didn’t work 

right on that evening. And I will tell you, if I were in that community I would share the frustration that’s been shared already by 

many in that community for the lack of knowledge. 

The hearing today will examine these concerns closely, I’m sure, 

and hopefully shed some light on a broader tension between the 

public safety information and sensitive security obligations of 

chemical and other industrial facilities following this accident. 

Given the Energy and Commerce Committee’s primary jurisdiction over public health and safety, it is incumbent upon us to confront this tension so that we can identify whether additional congressional action or guidance is necessary. 

To the people and first responders along the Kanawha River, the 

explosion on the night of August 28th didn’t really involve Federal 

rules and regulation about safety and security. They were immediately concerned about what was engulfed in that fireball and esVerDate Mar 15 2010 23:37 Apr 12, 2012 Jkt 067825 PO 00000 Frm 00010 Fmt 6633 Sfmt 6633 E:\HR\OC\A825.XXX A825

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caping in a cloud of smoke and mist blowing in the wind down 

river from the facility. That’s what worried them. 

The police and firemen along the river—from Nitro, St. Albans, 

Dunbar, South Charleston, Jefferson, Kanawha County—knew that 

many very dangerous chemicals were used at the Bayer plant. In 

fact, some of them were employees of the plant, others had relatives who worked there. They had been on site, they had friends 

or family who worked there, they knew about phosgene and chlorine, and they knew about methyl isocyanate, or MIC, the toxic 

chemical notorious for killing and sickening thousands of people in 

India. 

What they did not know, and what Bayer would not confirm with 

any specific information for nearly 3 hours, was what chemicals 

were associated with that fire and whether anything toxic risked 

being released into the community. They could not even get confirmation where the fire was for nearly an hour and a half. Bayer 

wouldn’t let them into the facility. The county sheriff had to get 

fire information through a deputy’s family contact in the plant. 

Frankly, folks, that’s unacceptable. 

What Bayer would say in its main communications to the county 

METRO911 and emergency operations center was, ‘‘Our response 

team is responding to our emergency.’’ And sometimes would add, 

‘‘Alert the public.’’ This went on all night. Alert the public about 

what? Having been—not in a chemical situation—but having been, 

again, in the radio business, when things break loose the public 

wants more information and the media can actually be helpful in 

calming the fears or helping people do the right things. 

We will learn today that Bayer CropScience has a very capable 

fire brigade. It managed to control the fire largely on its own, but 

this does not absolve the company of its obligations to the community. 

As County Commission president Kent Carper, a witness today, 

noted a few days later, Kanawha County emergency officials were 

given no information during this critical time to make proper decisions to ensure the safety of its citizens. Fortunately, the fire did 

not result in a major toxic release, but emergency responders, lacking information, had to notify some 40,000 residents to take shelter 

in their homes. Imagine the concerns that generated. 

We’ll take testimony on what Bayer and first responders have 

done to resolve communications issues which reportedly have been 

addressed. Yet as we moved from the communications during the 

incident to the ensuing Federal safety investigation, we find continuing problems. Chief among these is the ability of the Federal 

Chemical Safety Board, the CSB, to investigate, examine and report, unhindered, full and necessary information about the causes 

of the explosion. 

Similar to the Federal investigations following airplane crashes, 

the CSB reports result and makes recommendation that can improve safety throughout the industry. This is a critical function for 

enhancing public safety. Security sensitive information about chemical plants does need to be protected against terrorists. But Bayer 

CropScience admits using the Federal law and such information to 

frankly restrict legitimate public discussion by CSB about critical 


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safety processes for certain chemicals at the site and prevent public 

debate. 

At least initially the U.S. Coast Guard, the arbiter of security 

designations, and CSB both had to take company assertions at face 

value, in part due to a lack of familiarity with and clarity in the 

regulations as they applied to chemical facilities. This is a policy 

matter beyond the Bayer case that may require congressional attention. Allowing inappropriate use of sensitive security information designations to hide inconvenient facts is simply not acceptable and undermines public safety. 

Moving forward, we have to ensure the rules are clear and that 

CSB and the U.S. Coast Guard can work out bureaucratic differences so the public safety can be addressed effectively and with 

our security needs. 

I welcome the witness and I think you, Mr. Chairman, for this 

hearing. 

Mr. STUPAK. Thank you Mr. Walden. 

The Chairman of the full committee, Mr. Waxman, for an opening statement, please. 

OPENING STATEMENT OF HON. HENRY A. WAXMAN 

Mr. WAXMAN. Thank you very much, Mr. Chairman. Today’s 

hearing is important not only for the residents of West Virginia, 

but for people across the country who live near chemical plants and 

may be concerned about their safety. 

This morning I would like to do two things. First, I would like 

to provide some historical context for today’s hearing. And secondly, I would like to describe some of the specific findings of the 

committee’s investigation into the Bayer explosion. 

I’ve been working on the issues relating to chemical security for 

several decades. On December 14, 1984, when I was chair of the 

committee’s health subcommittee, we held a field hearing in West 

Virginia to examine the safety record of the very same plant we are 

discussing today. Back then, the plant was owned by Union Carbide. We called that hearing because earlier that month the company’s sister plant in Bhopal, India released 25 to 45 tons of an extremely toxic chemical called methyl isocyanate, killing approximately 4,000 people and injuring tens of thousands of others. We 

wanted to make sure that we never had a similar incident here. 

As a result of the committee’s work on this issue, we passed legislation in 1990 to create the Chemical Safety and Hazard Investigation Board. Congress gave the Board broad investigative powers, authorized it to identify measures to reduce the likelihood of 

the consequences of an accidental release, and charged it with recommending ways to make chemical production, processing, handling and storage as safe and free from risk of injury as is possible. 

The Board is investigating the recent Bayer explosion, and we 

are pleased to have Chairman John Bresland with us today to 

present his preliminary findings. 

In my opinion, the most significant problem we face today is that 

we are examining the same chemical plant in West Virginia, although it is now owned by Bayer, and the same toxic chemical, 

MIC. Although other chemical companies like Dupont have invested in safer technologies to eliminate their MIC stockpiles, BayVerDate Mar 15 2010 23:37 Apr 12, 2012 Jkt 067825 PO 00000 Frm 00012 Fmt 6633 Sfmt 6633 E:\HR\OC\A825.XXX A825

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er’s facility in West Virginia is the only site in the United States 

that continues to produce and store large amounts of methyl 

isocyanate. 

Twenty-five years after the catastrophe in India, I think it is finally time to ask whether it makes sense to allow Bayer to continue producing and storing such massive amounts of this highly 

toxic chemical. I know the Chemical Safety Board is considering 

how to address this issue. So I want to make absolutely clear that 

Congress will look to the Board for specific and concrete recommendations on how Bayer can reduce its MIC stockpile and 

change its procedures to inherently safer technologies. This is not 

an easy task, but it is essential and time has occurred for us to get 

on with this job already. 

Now let me turn to the findings of our investigation. We have a 

detailed memo that was compiled by our committee staff and it sets 

forth the result of our investigation. The committee reviewed more 

than 200,000 pages of documents, as well as audio and video recordings obtained from Bayer, the Coast Guard, Environmental 

Protection Agency and the Chemical Safety Board. 

Committee staff also inspected the Bayer’s plant in West Virginia 

and interviewed more than 20 Bayer employees, first responders, 

elected officials and concerned residents. Based on this evidence, 

our overall conclusion is that Bayer engaged in a campaign of secrecy by withholding critical information from local county and 

State emergency responders by restricting the use of information 

provided to Federal investigators, by attempting to marginalize 

news outlets and citizen groups concerned about the dangers posed 

by Bayer’s activities and by providing inaccurate and misleading 

information to the public. 

We have three specific findings: 

First, on the night of the explosion, Bayer failed to provide emergency responders with critical information about the scope of the 

explosion, the potential chemical hazards involved, or the action 

needed to safeguard the surrounding communities. 

Second, there are serious questions about the vulnerabilities of 

Bayer’s inventory of MIC and about MIC monitoring systems that 

were out of service at the time of the explosion. 

And third, Bayer is now attempting to conceal information about 

the explosion by invoking, and in some cases misusing, a statute 

governing maritime transportation security to designate unprecedented amounts of material as ‘‘sensitive security information.’’ 

The memo goes into greater detail about the evidence that forms 

the basis of these findings. Mr. Chairman, I ask unanimous consent that the memo and the documents it refers to be made part 

of the official hearing record. 

Mr. STUPAK. Without objection, I think it has previous been entered. 

Mr. WAXMAN. Thank you. 

Finally, I would like to extend special thanks to the local, county 

and State emergency responders and other officials from West Virginia who worked with our staff on this investigation and traveled 

here today to answer the committee’s questions. 

Mr. Chairman, I want to thank you very much for holding this 

hearing and doing this investigation. 


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Mr. STUPAK. Thank you, Mr. Chairman. 

Next, Ms. Sutton from Ohio for an opening statement. 

OPENING STATEMENT OF HON. BETTY SUTTON 

Ms. SUTTON. Thank you, Chairman Stupak, and thank you for 

holding today’s important hearing on the secrecy in the response to 

Bayer’s fatal chemical plant explosion. And to the families of those 

who lost their lives as a result of this explosion, I am deeply sorry. 

There is nothing quite like the fear of the unknown. Musicians 

have written songs and Hollywood has made countless movies 

about this fear. 

On August 28, 2008, families and rescue workers throughout the 

community of Institute, West Virginia lived through this fear. They 

knew some information. They knew that an explosion shot a fireball more than 100 feet into the sky. They knew that a fire was 

raging inside Bayer’s facility, the only facility in the United States 

that continues to store MIC. This is the same highly toxic chemical 

that killed thousands of people in an industrial disaster in India 

in 1984. 

According to Dale Petry, the director of the Office of Emergency 

Services for Kanawha County in West Virginia—and I quote—‘‘We 

didn’t know what to do. We want to protect the community and we 

need more information to do that.’’ That is not an acceptable place 

to leave our first responders. 

He said, we didn’t know what to do. Without the proper information, actions cannot be taken in a timely fashion to inform and protect the public. And without the proper information, those charged 

with protecting the public are left to plan for the absolute worst 

case instead of an actual situation, which can waste a lot of time 

and resources. 

For the sake of our safety, our firefighters and other first responders face dangers every day throughout my district and communities across the country. And increasingly they are called to do 

so under cash-strapped conditions and understaffing. They can’t afford to waste resources and they certainly cannot afford to operate 

in a crisis, without knowledge, all the knowledge that we can give 

them to safely do their jobs and protect their communities. And our 

constituents deserve a system that works, a system that keeps 

them safe. 

I take my responsibility to ensure the safety of Americans very 

seriously. Congress, through this committee’s hard work, created 

the Chemical Safety and Hazard Investigation Board in 1990 as an 

independent agency to investigate chemical accidents and provide 

public recommendations in findings to help prevent future accidents. After 9/11, additional laws, such as the Maritime Transportation Security Act, were passed, aimed at protecting the public 

from potential terrorist attacks. But we now find ourselves in a situation where two laws, both aimed at protecting the public, failed 

to get the job done. And I think that the laws had some help. 

The accident and the actions taken and not taken in the aftermath of the accident caused grave harm. We owe it to the families 

of those who lost their lives, we owe it to the first responders who 

were on the scene, we owe it to the community in West Virginia, 

and we owe it to communities throughout this country to get to the 


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bottom of what has happened and take the actions that are necessary to make sure if it ever should happen again, which we hope 

to prevent, that things will be handled differently and more effectively. And I yield back. 

Mr. STUPAK. Thank you. 

Mr. Braley for an opening statement, 3 minutes. 

OPENING STATEMENT OF HON. BRUCE L. BRALEY 

Mr. BRALEY. Thank you, Mr. Chairman and Ranking Member 

Walden, for holding this hearing. You know, we talk a lot about accountability on this committee and we talk a lot about transparency. But what I thought about as I was reviewing the materials for this hearing is a public relations course that I took when 

I was a college student at Iowa State University, where Bayer has 

a huge presence. And the number one thing that you are taught 

in a public relations course in response to a disaster of this magnitude, the first thing you do is own up to your responsibility, accept responsibility for it, and communicate to the public your plan 

to make sure that it never happens again. 

If Bayer had been graded on their project based upon the response they made to this disaster, they would have gotten an F. 

That’s the bottom line of why we are here today. Our job is to get 

to the bottom of what went wrong, to get answers to the people in 

this community who are entitled to answers, and to get a commitment from this corporation about what they are going to do to 

change their corporate behavior and start to put a better image forward of corporate responsibility. 

This is not an isolated incident that happens in one community 

in West Virginia. It is the type of risk that U.S. citizens are exposed to every day. In light of what’s going on on Wall Street and 

other parts of the economic sector, it is time for American companies to realize that the best way for them to generate profits for 

their shareholders is by being frank and forthright when they do 

something wrong; to accept responsibility for it, and to look into the 

eyes of the people they have harmed and say, we will make this 

better, we will make sure this doesn’t happen again. 

And that’s what I hope happens as a result of this hearing and 

I yield back. 

Mr. STUPAK. Mrs. Christensen for an opening statement. 

Mrs. CHRISTENSEN. Thank you, Mr. Chairman, and thank you, 

Chairman Stupak, for holding this hearing on chemical plant security, both for this Energy and Commerce Committee and my previous committee. 

Mr. STUPAK. Is your mike on? 

OPENING STATEMENT OF HON. DONNA M. CHRISTENSEN 

Mrs. CHRISTENSEN. Homeland Security. If we can fix what went 

wrong during the incident of August of 2008, it would not only ensure the safety and reassure people living in the areas adjacent to 

Bayer CropScience, but it will do so and be reassuring for people 

all over our country who live near chemical, nuclear and other 

plants that house and store hazardous material. 

As a former emergency services coordinator, I have been responsible for health during two of the worst hurricanes that hit any 


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part of the United States at that time. I find the lack of information-sharing and failure of coordination of response at the time of 

the incident shocking and totally unacceptable. 

I am very concerned about the withholding of vital information 

the community needed to have, but also about the lack of a clear 

incident command process that would have linked the plan to those 

responsible for the safety of the community. 

And I am especially concerned, since I have an oil refinery and 

several other smaller chemical plants on a small 82-square-mile island that has less people than live in the area surrounding Bayer 

CropScience. And all of the plants are on the water and come 

under the Coast Guard and the MTSA. The entire island of St. 

Croix, 60,000 people, including my daughter and grandchildren, 

would be in grave danger if there was an accident and the response 

was not quick and appropriate. 

I also have a long and excellent relationship with the Coast 

Guard and admire and applaud their history of service and readiness to serve and protect lives under every circumstance, and it 

pains me to see them drawn into this situation, especially on an 

issue of possibly withholding information the public is entitled to 

have. And I trust that this will be cleared up during the hearing. 

I am sure we will examine this and other areas of concern, and so 

I look forward to the testimonies, and thank everyone for coming 

here to share information with us this afternoon. I yield back. 

Mr. STUPAK. Thank you. 

That concludes the opening statement by all members of the 

committee—almost concludes. Mr. Markey, recognized for an opening statement. 

OPENING STATEMENT OF HON. EDWARD J. MARKEY 

Mr. MARKEY. Thank you, Mr. Chairman, very much, I appreciate 

your recognizing me. 

On December 3rd, 1984, an accident at a Union Carbide pesticide 

plant in Bhopal, India released 42 tons of toxic methyl isocyanate— 

or MIC—gas, killing thousands of people and injuring many more. 

Reports regarding the accident’s cause indicated that in addition to 

questions surrounding the maintenance of the plant, other factors 

also contributed to the catastrophe. Union Carbide was using toxic 

MIC, even though a safer substitute that could have reduced the 

consequences of the accident was available. Union Carbide was 

storing the toxic MIC in large tanks instead of smaller ones, the 

use of which could have reduced the consequences of the accident. 

Last summer when a chemical tank exploded at a Bayer facility 

in West Virginia, sending a fireball into the sky and killing two 

employees, that facility was, just like the facility in Bhopal, storing 

large quantities of the same chemical and, just like the facility in 

Bhopal, the Bayer facility could have chosen to use safer processes 

that eliminated or greatly reduced the need for the toxic chemicals 

in the first place. 

But unlike the Bhopal catastrophe, the people of West Virginia 

were relatively lucky because, quite by chance, the explosion that 

caused the two tragic deaths did not result in the release of large 

quantities of MIC gas that could have killed thousands more. That 

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jectile missile as a result of the explosion, it happened to travel in 

the opposite direction, away from the MIC tank. 

Although the accident ultimately caused two fatalities and the 

demolition of the area within the facility, the most catastrophic 

consequence, the release of almost 7 tons of MIC gas, did not occur. 

The explosion at the Bayer plant highlights the need for all facilities storing large quantities of dangerous chemicals to assess if 

there are safer ways to do business and to use these technologies 

when possible. 

Today’s hearing is about an accident. Another chilling scenario: 

that would-be terrorists who target these facilities could cause a 

catastrophic accident. I am committed to ensure that the use of 

safer technologies and processes be part of the legislation which we 

ultimately pass. 

I thank my colleagues for all of their hard work on this legislation and I thank you, Mr. Chairman, for recognizing me. 

Mr. STUPAK. Thank you, Mr. Markey. 

That now concludes the statement of members of the subcommittee. 

I want to recognize our colleague, as the Ranking Member said, 

Ms. Capito, Shelly Moore Capito, who represents and lives near Institute, West Virginia. Ms. Capito, you are welcome to sit through 

this hearing and observe. And I understand you have an opening 

statement or written statement for the record. 

I ask unanimous consent that Ms. Capito’s statement be entered 

into the record. Without objection, so be it. 

[The information was unavailable at the time of printing.] 

Mr. STUPAK. Also Senator Rockefeller from West Virginia has 

also submitted an opening statement that will be made a part of 

the record. Hearing no objection, it will also be made a part of the 

record. 

[The information was unavailable at the time of printing.] 

Mr. STUPAK. I now call our first panel of witness. 

On our first panel we have Mr. John Bresland, who is chairman 

of the U.S. Chemical Safety and Hazard Investigation Board, CSB; 

Mr. Joseph Crawford, who is chief of police for the City of St. Albans, West Virginia; Mr. Michael Dorsey, who is the chief of Homeland Security and Emergency Response for the West Virginia Department of Environmental Protection; Mr. Kent Carper, who is 

the president of the Kanawha County Commission in Kanawha 

County, West Virginia; and Ms. Pamela Nixon, who is an environmental advocate with the West Virginia Department of Environmental Protection. Welcome to all of our witnesses. 

It is the policy of this subcommittee to take all testimony under 

oath. Please be advised that you have the right under the rules of 

the House to be advised by counsel during your testimony. Do you 

wish to be represented by counsel? 

Mr. STUPAK. They are shaking their heads ‘‘no.’’ So then I will 

ask you to please rise and raise your right and to take the oath. 

[Witnesses sworn.] 

Mr. STUPAK. Let the record reflect that witnesses have reapplied 

in the affirmative. You are now under oath and that includes your 

opening statement. 


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We will now hear an opening statement from each of you. If you 

have a longer statement we will submit it for the record, but please 

try to keep your comments to 5 minutes. 

TESTIMONY OF JOHN BRESLAND, CHAIRMAN, U.S. CHEMICAL 

SAFETY AND HAZARD INVESTIGATION BOARD; MICHAEL 

DORSEY, CHIEF OF HOMELAND SECURITY AND EMERGENCY 

RESPONSE, WEST VIRGINIA DEPARTMENT OF ENVIRONMENTAL SECURITY; KENT CARPER, PRESIDENT, KANAWHA 

COUNTY COMMISSION; AND JOSEPH CRAWFORD, CHIEF OF 

POLICE, CITY OF ST. ALBANS, WEST VIRGINIA 

Mr. STUPAK. We will start with you Mr. Bresland, if you don’t 

mind, for an opening statement. You might have to press that button on that mike there. There you go. I can hear you. 

TESTIMONY OF JOHN BRESLAND 

Mr. BRESLAND. I have pressed it. I thank Chairman Stupak, 

Ranking Member Walden, and also Chairman Waxman for attending today. I’d also like to thank Congresswoman Capito for attending. I am one of her constituents living in West Virginia, but not 

in the area where the accident took place. 

Also I thank all the other distinguished members of the panel or 

of the committee who are here today. 

I am speaking today on my own behalf as CSB Chairman, not 

necessarily for the other board members. The Chemical Safety 

Board is an independent Federal agency that investigates major 

chemical accidents at fixed facilities. Our public reports, recommendations and safety videos are used worldwide to help save 

lives, protect the environment and promote safer industrial operations. 

Mr. Chairman, the explosion at Bayer CropScience was a very 

serious and tragic event and it had potential for additional grave 

consequences. The explosion occurred during the restarting of the 

plant’s methomyl production unit while highly toxic and reactive 

methomyl waste was overloaded into a residue treater vessel. A 

violent runaway reaction ruptured the 5,000-pound vessel and sent 

it careening through the production unit, breaking pipes and equipment, leaving a 50-long-foot swath—if I’m pronouncing that word 

correctly—of destruction. 

The explosion and resulting chemical release and fire fatally injured two employees, six volunteer firefighters, and two others 

showed likely symptoms of chemical exposure. The blast waste 

damaged businesses thousands of feet away. 

Mr. Chairman, our investigation has revealed that significant 

lapses in process safety management set the stage for this accident. 

Plant operators had received inadequate training on a new computer control system which was being used for the first time. Written operating procedures were outdated and could not be followed 

during start-ups due to longstanding equipment problems. The 

heater for the residue treater was known to be undersized. This 

regularly forced operators to defeat three critically important safety 

interlocks during start-ups, increasing the chance of dangerously 

overloading the treater with methomyl. This longstanding practice 

was known to Bayer management prior to the explosion. 


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I am also troubled by Bayer’s delays in providing county 911 officials and the National Response Center with accurate information 

about the nature of the ongoing emergency and the hazardous 

chemicals involved. 

In addition, there is the question that many of the public are 

concerned about: What else could have happened? The Bayer plant 

manufactures and stores very large quantities of some of the deadliest substances used in industry including phosgene gas, and 

methyl isocyanate, or MIC. 

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 30,000-pound vessel 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 100 

pounds flew in all directions. Some landed near the MIC tank. If 

the MIC tank had been damaged by a powerful projectile or the 

residue treater itself, which had a great deal of energy, there might 

have been a catastrophic impact on workers, responders and the 

public. 

Finally I am concerned about Bayer’s recent secrecy claims which 

surfaced in February, right after we told the company we were 

planning a public hearing on our preliminary findings. Bayer now 

contends that around 2,000 pages of previously submitted investigative documents should be treated as sensitive security information, or SSI, under the Maritime Transportation Security Act. 

Simply understanding which of these SSI markings are proper or 

not is a daunting task for all of the agencies involved, including the 

Chemical Safety Board and the Coast Guard. In close consultation 

with the Coast Guard and with DHS, we decided to proceed with 

the CSB public meeting, which will now occur this Thursday in Institute, West Virginia. I still have significant concerns about how 

these information protection rules may negatively impact this and 

future CSB investigations. 

I am asking Congress to consider the following: 

Companies should not be able to claim OSHA and EPA safety 

compliance documents or routine business records as secret. The 

information protection rules for chemical plants should be harmonized across the different branches of DHS. Finally, the CSB 

and other public safety agencies should not be subject to potential 

sanctions when conducting their congressionally mandated job of 

reporting to the public on the causes of accidents. We should not 

be threatened with losing our job or being fined as a result of doing 

our job properly here in Washington. 

I call for a reaffirmation of the public’s right to know so we at 

the CSB can continue to fulfill our mission of saving lives of workers and the public from chemical accidents. 

I thank you for this opportunity to testify today. 

Mr. STUPAK. Thank you, Mr. Bresland. 

[The prepared statement of Mr. Bresland follows:] 


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Mr. STUPAK. Mr. Dorsey, your statement please. 

TESTIMONY OF MICHAEL DORSEY 

Mr. DORSEY. Thank you Mr. Chairman. Chairman Stupak, Ranking Member Walden, Congresswoman Capito, and ladies and gentlemen. Thank you for the opportunity to be here today. My name 

is Mike Dorsey. 

The explosion at the Institute, West Virginia, Bayer facility 

which shook the entire area and eventually claimed the lives of two 

workers was a tragic accident, the effects of which, were compounded by a lack of communication about the conditions inside 

the plant by the onsite command team and a nearly complete failure of the instant command system as a result of that failure. 

Perhaps of greater consequence, Bayer’s attempts to stifle the report of the Chemical Safety Board by citing the Marine Transportation Security Act’s provisions regarding port security plans, 

which in and of itself is a greater communication failure. 

The Maritime Transportation Security Act of 2002, or MTSA, is 

legislation which seeks to improve security in America’s ports 

through a number of measures, but the requirement pertinent to 

this investigation is that which mandates the preparation of maritime transportation security plans. This requirement has become 

an issue in this instance because in all States, ‘‘Information developed under this chapter is not required to be disclosed to the public.’’ 

It is under this language that Bayer sought to block the findings 

of the Chemical Safety Board. Bayer is able to make this assertion 

because the broad definition of ‘‘facility’’ in the act, which includes—and I’m quoting again—‘‘any facility of any kind’’ on waters 

subject to the jurisdiction of that law. 

The relevant definition does not present a problem when normal 

port facilities which deal only with the loading and unloading of 

various cargos are considered. When facilities such as chemical 

plants or other manufacturing facilities, whose major emphasis is 

the manufacturing of goods rather than the shipping of goods are 

included wholesale under this definition, vast areas under which 

the Coast Guard has no expertise or experience are suddenly covered by a protective veil which other concerned agencies as well as 

the public are prohibited from lifting. 

Manufacturing processes, chemical storage transfer methods and 

many other physical and administration functions which have 

nothing at all to do with the shipping or the port portion of the facility are now potentially under the purview of an agency which, 

through no fault of its own, is now expected to make decisions far 

outside of its mission. 

Bayer CropScience uses many dangerous chemicals such as chlorine, phosgene, methyl isocyanate and others in its processes. In 

fact, most large manufacturing facilities use dangerous materials 

and equipment. 

Nearly all major Institute industries in West Virginia are on 

navigable waterways that are under the jurisdiction of the MTSA. 

Conceivably, all such chemicals and processes can be concealed 

using MTSA. 


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I do believe that the Coast Guard made a wise decision in the 

case at hand, allowing all information except the times when the 

MIC tank is to be filled to be disclosed. But I would argue that in 

spite of their skills, they are not the proper agency to make decisions regarding chemical processes or other activities far removed 

from the port setting. 

As a member of the State Emergency Response Commission with 

the responsibility for implementing the Emergency Planing and 

Community Right To Know Act, or EPCRA, I believe that allowing 

the MTSA to be read as Bayer proposes will cripple provisions of 

this act. EPCRA mandates that local emergency planning committees write plans to address all potential emergency situations at 

chemical plants and that critical information be provided by the facility to the emergency response committee. 

This information would not be available if Bayer’s reading of the 

Maritime Transportation Security Act is validated; nor information 

required by other acts, such as the Resource Conservation Action, 

Clean Water Act, and others would be available. 

A final, but critical note on the MTSA is language that Bayer 

used to attempt to prevent the CSB’s finds from being revealed to 

the public is not prohibitive at all; it was permissive. The act states 

that facility plans—and I am quoting again, ‘‘are not required to 

be disclosed.’’ It does not prohibit such disclosure. 

In other words, even if the definition of the facility is broadly interpreted and the entire plan is covered, Bayer can still release the 

information developed under MTSA if it wanted to in this instance. 

The choice of whether or not to be a good corporate citizen in this 

case is Bayer’s. 

Ladies and gentlemen, I have other written testimony. I will now 

cease my comments. 

Mr. STUPAK. Thank you Mr. Dorsey. 

[The prepared statement of Mr. Dorsey follows:] 


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Mr. STUPAK. Mr. Carper, your opening statement, please, sir. 

TESTIMONY OF KENT CARPER 

Mr. CARPER. First time someone had to push a microphone in my 

face. 

Chairman Stupak, Ranking Member Walden, and members of 

the O&I Subcommittee, and particularly my Congresswoman Capito, I want to thank you for your interest and I also want to thank 

you for what I know is your absolute sincere concern about our two 

lost family members in the State of West Virginia. I want to thank 

you. 

And I do have some written comments, I want to skip through 

part of it. But when I heard about your interest in passing communications and knowing we run a 911 center for about 600,000 calls 

a year—small enough for a peninsula, but pretty big for us—but 

I am familiar, Chairman, with your record on interoperable communications and how you fought for that, like our Congresswoman 

Capito. 

And I’ve heard the comments about the lack of the command system. You can’t dispatch someone if nobody will tell you where to 

send them to, what’s going on and the nature of the emergency. 

And with all due respect, it is not a question of whether it happened or not, we supplied you—your staff has done an excellent job 

by the way, I want to commend them as well—we supplied them 

with our tapes. 

One thing about our 911 center, when we do something right, we 

know it; and when we do something wrong, we know it and it is 

all documented. And I’m not saying the dispatch was perfect, but 

it was pretty darn good considering what we had, number one. 

And our first responders were heroic. And it was practically a 

miracle that one of the other vessels didn’t rupture. And that was 

our problem as we continuously sought to find out what was going 

on so we could tell police officers, firefighters and paramedics in 

the community what they needed to know. And they needed to 

know, and they didn’t know. 

I’m the former police chief of the city of Charleston. I have not 

the law enforcement background like the Chairman has, but a little 

bit. And this gentleman next to me has an extensive law enforcement background, and our elected sheriff and chief deputy on the 

scene, they did all they could do, but they knew so little. 

As you look through this, we had an event that occurred in December the previous year. We were assured that this wouldn’t happen again. 

With me today is our executive director of our 911 center, our 

former fire chief of the city of Charleston. These folks have extensive experience in managing an emergency. But they were simply 

there, waiting to make decisions, waiting to work. The word ‘‘waiting’’ is what happened. And as my testimony—Mr. Chairman, you 

have it—we have the time line. This went on not for minutes, it 

went on for hours. And eventually the 911 people, in conjunction 

with our decision makers made a decision in the blind, in the dark, 

to go ahead and issue a shelter-in-place decision. I helped participate in that to some extent. I am proud of them for doing that. 

That was exactly what they needed to do. 


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As you know, the State of West Virginia, our Governor, Governor 

Manchin, has issued legislation now—which is in my written testimony—where we’ve changed the rules. The legislature simply won’t 

allow this to happen. Our 911 center also changed the rules. 

I think at the end of the day, there are two things that concern 

me. And frankly I agree 100 percent with CSB’s recommendation. 

I hope Congress will take a look at that. You actually have two 

issues before you as O&I—whether or not you’re going to issue 

stringent requirements on how they are going to handle that. But 

the more troubling aspect is the veil of secrecy as you all have described it. It is a veil of secrecy. And with all due respect to Bayer, 

I will go on record saying they have changed things since then. 

They are doing certain things. I am sure they will testify to that. 

I looked at it, and I believe they had good faith in those efforts. 

However, we will have a public meeting in Institute, West Virginia, this Thursday at 6:30 I believe. What kind of a meeting is 

that going to be when certain information is still being withheld 

from the public? And even if they have complied in part after they 

drug the Coast Guard into this—I mean, Mr. Chairman, this is 

West Virginia, this isn’t Upper Peninsula; we don’t have 1,600 

miles of coastline. It is a small State. And the idea that the Coast 

Guard is going to stop the people in Institute, which by the way 

is a heavy minority community, we have over 500 college students 

at West Virginia State University, right in the footprint of this 

chemical plant. Right now, even if everything seems to go good at 

this hearing, the people there will believe that critical information 

is being withheld from them simply because of this insertion of 

Homeland Security. 

It is above my pay grade. I don’t claim to be an expert on Homeland Security, the Patriot Act, or anything else. But I cannot imagine this Congress had that intent when they passed the law not to 

let the people know, who are sitting as a next-door neighbor to one 

of the most dangerous chemicals—I can’t pronounce it either, I just 

call it M–I–C—but I know enough about it to know that it is a very 

dangerous chemical. And the more you store, the more dangerous 

it is. And if you’re going to store a lot of it, you ought to tell your 

neighbors what you are doing. 

And with that, I do again, Chairman, want to thank you for your 

sincere reflection on our loss and your interest in a very, very serious matter. Thank you very much. 

Mr. STUPAK. Thank you Mr. Carper. 

[The prepared statement of Mr. Carper follows:] 


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Mr. STUPAK. Mr. Crawford, your testimony, please, sir. 

TESTIMONY OF JOSEPH CRAWFORD 

Chief CRAWFORD. Thank you, Mr. Chairman. First of all I would 

like to thank you very much and brag on your staff. I thought my 

dealings with them was probably the best I’ve experienced in my 

life, in my career in law enforcement. Hats off to your staff, they 

did an excellent job. 

First I want to take this opportunity to thank you, Mr. Chairman, and distinguished members of this committee for allowing me 

to speak today. My motivation is to provide this committee with 

the perspective of a responder responsible for the safety of our community, as well as the safety of my officers. 

It is my hope and intention that this hearing today will help you 

understand what happened on the night of August 28th, 2008. I 

want to give members of the committee the most accurate information, from a responder’s perspective, that will help this committee 

draft legislation and implement changes to make the necessary 

changes to ensure that the citizens of Kanawha County and the 

first responders’ safety are not compromised. I believe this can be 

done—this can be accomplished by all of us working together. 

The city of St. Albans is southwest and within line of sight of 

Bayer CropScience Plant. The city of St. Albans is near the western 

border of Kanawha County. Kanawha River separates the plant 

and the town. The population of the city of St. Albans is approximately 11- to 12,000 people. U.S. Route 60 is the main highway 

through town and has a high volume of traffic. 

I had three officers on scene, of an unrelated call on the east end 

of the city, when they heard and observed the fire and explosion. 

My supervisor radioed to METRO911 Kanawha County Dispatch 

Center and advised them of the explosion at 10:33 p.m. The officers 

had direct line of sight to the plant, being almost directly across 

the river from the explosion. 

I was at my residence. It was approximately 2 miles direct line 

of sight from the plant. The percussion shook my house and rattled 

pictures on the walls. I contacted my on-duty shift commander by 

phone and he confirmed that he and two other officers witnessed 

the explosion and fire at the plant. 

Within minutes, I was receiving phone calls from local news 

media. I and Chief Steve Parsons, the St. Albans Fire Department 

Chief, responded to the east end of the city and met with my shift 

commander within 10 minutes of the explosion. It was obvious that 

there was a large fire in the direction of the plant. We started assessing the situation and wind conditions. We noticed a large 

plume moving west towards the city of St. Albans and Nitro City, 

just across from us. Chief Parsons and I were in constant contact 

with METRO911, trying to learn the gravity of the situation, but 

were informed that METRO911 was unable to get any information 

from the plant. Chief Parsons and I had a discussion about ordering a shelter-in-place for the St. Albans-based, and based on our 

assessment and direction of the plume. 

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dered for the surrounding areas from his position. Hindsight, if the 

same situation happened again, we would have ordered a shelterin-place immediately. 

I was also in contact with my colleagues from other law enforcement agencies, because no one knew the substance that was being 

released from the plant. Area law enforcement officials were making decisions to close highways in the area of the plant to protect 

the public. I ordered to call all our off-duty officers to assist. 

A traffic diversion plan from our emergency response plan was 

used. Chief Parsons and I activated our Forward Operation Center 

there in the city at approximately 11:15 p.m., which is about 45 

minutes after the initial call. 

We still weren’t able to obtain information from the Bayer 

CropScience Plant as to the chemicals that were involved. Fortyfive minutes into the event we still did not have any information 

from the plant. However, we received information that the incident 

commander on scene was advising that a shelter-in-place order was 

not needed. The only information about what was involved came 

from outside sources, that it may be the Larvin Unit. At this time, 

there were low-lying, hazy clouds over the city. 

At 11:18 p.m. we heard a secondary explosion. At 11:21 we received unofficial information that an explosion had occurred in the 

Larvin and Pesticide Unit. I had a growing concern about our officers being out in that environment and directing traffic for an extended period of time. My colleagues also had the same concern for 

their officers as well. 

At 11:42 p.m., Kanawha County Emergency Management Director Dale Petry issued a shelter-in-place due to lack of information 

coming from the plant. It is common knowledge that MIC is stored 

and used at the plant on a daily basis. It is very frustrating not 

having any information about what was being released and trying 

to make decisions to protect our officers and citizens. 

I was advised at 11:20 p.m. representatives from the County 

were staged at the main gate of the plant waiting to gain access. 

I also was advised later that representatives from the Kanawha 

County Sheriff’s Department, County OES, and West Virginia Fire 

Marshals Office had made numerous attempts to gain access to the 

BayerCrop Plant. This was being done to help coordinate efforts 

outside the plant. 

Finally, after 30 to 40 minutes, BayerCrop allowed those representatives inside the plant and escorted them to the EOC. They 

were placed and sequestered, in a separate room connected to the 

plant EOC, but still had problems getting information to relay back 

to the County EOC. At 035 hours, 12:35 a.m., Chief 24, the incident commander, radioed METRO911 advising that he still does 

not know what chemicals are involved. 

At approximately 1:15 a.m., there were discussions about evacuation. We were advised that the fire was still burning and it could 

be out of control, it could not be contained. At 2:09 a.m., we were 

advised that the shelter-in-place had been lifted, the roadways 

were reopened. At 2:30 a.m., the St. Albans Police and Fire Department units were released and the Forward Operations Center was 

closed. 


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In closing, Mr. Chairman, I would like to make a comment to 

some key problems we faced that night and steps taken to correct 

them. 

First, the most important issue was the lack of communication 

and cooperation from the Bayer CropScience plant. The record will 

reflect on numerous occasions that the security guard at the gate 

was directed not to give out any information to the 911 center. 

Then once inside the plant, the officials were not given much information so that they could be relayed back to the county EOC. State 

legislation has been passed to address the notification process, 

where a chemical facility must notify the 911 center within 15 minutes. 

Bayer has purchased radios to be placed with the security supervisor in their emergency vehicles and operations center. Bayer will 

have the capability to use the county OES channel and communicate information directly to the 911 center. 

The second issue is there was a breakdown in communication between the incident commander and the county EOC. Information 

was relayed to the incident commander about the impact that the 

plume had on the surrounding areas, such as St. Albans, Nitro, Institute and Jefferson, and it was ignored. This was an issue about 

sheltering in place for us. 

The incident commander was not able to see the impact outside 

of the plant. As a city official responsible for the safety and welfare 

of our citizens and my responding officers, it made it very difficult 

to make operational decisions. Records will support that the incident commander, Chief 24, was made aware of the conditions in 

the surrounding areas. This issue will be resolved in the future by 

ordering a shelter in place if we have not received information from 

the Bayer CropScience plant within 15 minutes. 

The third issue discussed in the critique and after-action reviews 

were conversations about placing monitors outside of the plant and 

surrounding areas. Bayer has monitors along the fence line property on the river side of the plant. The discussions also included 

the capability of the monitors being able to send information back 

to the county EOC, mobile commander center, and other locations. 

This would allow command personnel to make better operational 

decisions to the units out in the field. Bayer officials indicated that 

would be a good idea, and indicated that Bayer may be able to assist with some funding for that project. 

And the last issue is the security of the plant. From a law enforcement perspective, I believe that Bayer needs to make their facility more secure. The reason for this concern is that Bayer could 

be a potential target for terrorism. When you have an event such 

as this, the first thing that crossed my mind: Is this an accident 

or an attack? Due to the nature of the hazards stored and manufactured at the site, one cannot overlook that as a possibility. 

Just my observations from outside of the plant, there are no barricades at the main entrance of the plant. What would prevent a 

vehicle from running the gate at the guard shack? Another concern 

is access from the river to the plant. There is a fence, but bolt cutters or a saw could give access, and it would go virtually undetected. 

Thank you, Mr. Chairman. 


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Mr. STUPAK. Thank you, Mr. Crawford. 

[The prepared statement of Chief Crawford follows:] 


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Mr. STUPAK. Ms. Nixon, your opening statement, please. 

TESTIMONY OF PAMELA NIXON 

Ms. NIXON. Thank you, Mr. Chairman. 

I am Pam Nixon. I am the environmental advocate with the West 

Virginia Department of Environmental Protection. My role with the 

community is to be their ombudsman. I am not a lawyer, and I do 

not work in that capacity. 

On the night of August 28, 2008, while visiting friends in the 

east end of Charleston, over 10 miles away from the Institute facility, around 10:30 we felt and heard a loud rumble. A statement 

was made, ‘‘At least it didn’t break the windows.’’ 

When I arrived home around 11 p.m., it was being reported there 

had been a major explosion and fire at the Institute plant; but 

there was no additional information on actions for the public to 

take for their safety. It had been 30 minutes. No shelter in place 

had been called. 

I had lived in West Dunbar, less than 1 mile from the plant, between the years of 1979 and 1990. The Institute area includes 

three small communities and a university; the communities of Institute, Pinewood Park and West Dunbar, and there is the campus 

of West Virginia State University, an Historically Black University 

with an enrollment of 5,000 students. Bayer CropScience is located 

to the west end of Institute near the university, and sits on the 

north bank of the Kanawha River. Directly across on the south side 

of the river is the unincorporated town of Jefferson, and to the west 

of Jefferson are the towns of St. Albans and Nitro. 

Due to their close proximity to the plant, all of the communities 

are no strangers to chemical emergencies. Depending on the velocity and direction of the wind, it would take less than 15 minutes 

for a plume from the plant to blow across them. Longtime residents 

know to stay off the phone and listen to the news for safety instructions during chemical emergencies. 

But as the minutes began to tick away, my phone began to ring. 

Before this, I was a grass-roots activist in the Institute area. I 

could hear the anxiety in their voices, and also the frustration and 

anger that this was happening again. Some of the callers said they 

were going to Charleston to stay at a hotel until it was safe to return. Others just wanted additional information since there was no 

valid information about public safety being reported on the news. 

I knew what they were feeling. It is like a wave that engulfs you 

when you hear an explosion, when you feel your home shake, when 

you see the smoke and the glow of the fire go up into the sky, not 

knowing what will happen next and fearing for the safety of your 

family. When you live that close to a chemical plant, you learn that 

every minute counts. 

As I said earlier, the plant sits along the river floor. There are 

two roadways also that follow the valley floor, MacCorkle Avenue, 

which is Route 60, on the south side, and Route 25 on the north 

side of the river. Also on the north side of the river and on the hill 

above the plant is I–64, a major interstate highway. In the 

Kanawha Valley, due to the terrain, you have to plan your path of 

egress in case of an emergency, whether it is from a chemical emergency or an accident blocking your way. 


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For decades, the people of Institute were asking valid health and 

safety questions, even before the 1984 Bhopal tragedy. The very 

same questions that were asked back then were questions asked by 

different individuals during the public forums that were held after 

last year’s fire and explosion. Those questions were: Is it safe for 

our families to live here? What were the chemicals involved in the 

plume? What are the potential health risks? When will the plant 

stop producing and storing dangerous chemicals in our neighborhoods? And is it safe to eat the vegetables from our gardens? This 

is West Virginia, and people have gardens in their backyards. 

Back in 1984, there were no community right-to-know laws. The 

community and the faculty members from the university, at that 

time it was a college, organized to form the group People Concerned About MIC. With everybody working together, the group 

was empowered. They hosted meetings for company officials to explain chemical releases when they occurred. They participated in 

the national discussions to develop the community right-to-know 

laws. They worked with universities, medical doctors, and Ph.D.s 

to conduct health surveys, and they worked with technical advisers 

on toxic use reduction to present to the plant in 1984 a design for 

the company to use to reduce the risk to the community. 

After the right-to-know laws, they utilized this information for 

crucial information on the chemicals. 

Information was finally getting out, but over the past few years, 

community members have murmured that they were beginning to 

lose ground in the quality of information that they were receiving 

when there was an incident. They had been proactive. 

When chemical releases occur, residents say information is not in 

a timely manner. At times it takes weeks, even months, before the 

company will list the chemical names and provide the health risks 

to the community. In the past 2 years, there were two notable 

chemical releases, one on December 28 of 2007, and the other last 

year on August 28, 2008. During both events, even the emergency 

responders complained that they were not given enough information from Bayer CropScience to make informed decisions. 

After the December 2007 incident, Bayer CropScience vowed at 

that time to provide emergency services with detailed information 

during a release. It wasn’t until 2 months later, on February 27, 

2008, that Bayer officials described the December incident to the 

Sub-area Community Improvement Council. They were told the 

chemical was thiodicarb, also known as Larvin, a hazardous material used in insecticides. 

After much criticism about the August 28 incident, Bayer apologized and again vowed to provide detailed information on releases. 

However, on October 26, 2008, the news media informed Kanawha 

emergency services personnel of an MIC event that had occurred 

at Bayer around the end of September of 2008. This became such 

an issue that West Virginia’s Governor proposed legislation, which 

was passed during this year’s 2009 legislative session. This law 

now requires businesses to report industrial incidents to 911 emergency assistance centers within 15 minutes or be fined up to 

$100,000. 

So as you can see, it is no wonder that residents of western 

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fidence in Bayer CropScience providing early notification on chemical releases that happen at their plant. 

Thank you for allowing me to present this information. I am 

available for questions. 

Mr. STUPAK. Thank you for your testimony. 

[The prepared statement of Ms. Nixon follows:] 


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Mr. STUPAK. Mr. Bresland, your preliminary report, if I may 

summarize quickly, you indicated that where they are using this 

new vessel, this residue treater, that there is inadequate training 

on the computer system, there was a heater undersized, and is that 

where they bypassed the system? So they sort of bypassed the safety system on the heater, and that day we had a temperature rise, 

and they were getting different readings off the gauges, and that 

is when they sent the two employees down to check the gauges? 

Mr. BRESLAND. Correct. 

Mr. STUPAK. And that is when the vessel blew up, if you will? 

Mr. BRESLAND. That is correct. 

Mr. STUPAK. And at the time the vessel blew up, the video cameras were not working in that area, nor were the air monitors? 

Mr. BRESLAND. That is correct. 

Mr. STUPAK. In your preliminary report, is it fair to say that 

methomyl is the release that had come from this explosion? 

Mr. BRESLAND. Methomyl was the cause of the explosion. What 

happened was a concentrated solution of methomyl was fed into the 

residue treater. Normally it is diluted in the residue treating with 

a solvent; but in this case it wasn’t diluted with a solvent, and 

eventually it started to overheat, and it became an uncontrollable 

reaction, and the vessel exploded. 

What exactly happened after that we are not sure yet. We are 

still doing some work on that, because when the vessel explodes, 

the methomyl has already reacted, and then there was a major fire 

as well. That is a continuing part of our investigation, to find out 

just exactly what the outcome was. 

But if you look at a material safety data sheet for methomyl, it 

lists a series of chemicals that can be formed when it decomposes. 

Mr. STUPAK. So methomyl was released because the pipes exploded? 

Mr. BRESLAND. Yes. 

Mr. STUPAK. Any other chemical? We talked about MIC. Any 

other chemicals that may have been released that night? 

Mr. BRESLAND. Well, the chemicals that would have been released would have been the decomposition products from the decomposition of methomyl. I can give you a list of those chemicals. 

Mr. STUPAK. In your preliminary report, you have the exposure 

symptoms from methomyl, correct? 

Mr. BRESLAND. That is correct. 

Mr. STUPAK. You have on here nervous system disruption, 

blurred vision, pinpoint pupils, tremors, muscles twitching, nausea, 

abdominal pain, respiratory arrest, coma, death, liver damage, anemia; is that correct? 

Mr. BRESLAND. That is correct. 

Mr. STUPAK. So in this fire, some of this methomyl would be 

burned in the fire, and some would be washed away when fighting 

the fire into the river, and some might be carried off into the air, 

correct? 

Mr. BRESLAND. That is the issue that we need to address, just 

how much was carried off into the air because there was a major 

fire after the explosion. 

Mr. STUPAK. And we have no idea of knowing how much? 

Mr. BRESLAND. Not at the present time, no. 


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Mr. STUPAK. There is the methomyl residue. You can see the 

pipes where it would be released because of the broken pipe and 

equipment. 

Those goggles that I showed in my opening statement, do you 

have any idea what the chemicals are that are on the goggle? 

Mr. BRESLAND. That is the first time I have seen that photograph, so I am not able to answer that question. 

Mr. STUPAK. Let me ask, first responders, Chief Crawford, there 

seems to be a major disconnect between the story you tell about 

Bayer’s failure to provide information to emergency responders and 

the story that Bayer tells. They say that they shared everything. 

You lead the police department of St. Albans, the city directly 

across the river from the plant. Your officers saw the massive fireball from the explosion and notified Metro 911. As you began coordinating the emergency response for your community, a large, 

possibly toxic, cloud started drifting towards you, your officers and 

your citizens. I would like to show you the transcript of the radio 

calls between St. Albans Fire Department and Metro 911. It is 

right there in that document book. You can find it in tab number 

2, if you want to follow along. 

‘‘ST. ALBANS FIRE: We have a cloud of some type that is dark. 

It is moving toward Nitro. Can you please try to get some information so you can tell us what it is? 

‘‘METRO: Copy. Cloud is moving toward Nitro. I will try and figure out something. The command on seat hadn’t said anything 

about the cloud, but we are still trying to get some information on 

it. 

‘‘ST. ALBANS FIRE: You can see the cloud with the fire right 

above it for 3 to 4 miles. 

‘‘METRO: Still trying to figure out something out on it. 

‘‘ST. ALBANS FIRE: If we don’t hear something within 5 to 6 

minutes, we are going to do a shelter in place in the St. Albans 

area.’’ 

Chief Crawford, did you ever receive any information from Bayer 

about what this cloud was? 

Chief CRAWFORD. No. 

Mr. STUPAK. So Metro 911 was forced to go ahead and issue an 

order to shelter in place without knowledge of what was in that 

cloud? 

Chief CRAWFORD. That is correct. We did not receive any information. 

Mr. STUPAK. Did you ever receive any information what they believe was the composition of that cloud? 

Chief CRAWFORD. No. 

Mr. STUPAK. A week after the explosion, Bayer officials issued a 

statement that said, ‘‘We shared all information available with 

Metro 911 as that information became available.’’ Do you believe 

that to be an accurate statement? 

Chief CRAWFORD. What is a timely fashion? Some believe an hour 

and a half. An hour is entirely too long. 

Mr. STUPAK. Commissioner Carper, you wrote a letter on September 4 to Bayer. It is tab 6 in that book Mr. Crawford has. You 

said, ‘‘Metro repeatedly asked for information and was refused. In 

fact, no notification from Bayer, including the mention of the 


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Larvin Unit, until the all clear the next morning. This is a complete abdication of Bayer’s responsibility.’’ Is that correct? 

Mr. CARPER. That is correct. 

Mr. STUPAK. In your testimony today that you provided in advance, Bayer’s president and CEO said the company sent an official 

to Metro 911 center to provide that information, and let me show 

you what the Bayer president says. Again, it is in the book there. 

‘‘We were initially surprised when we received criticism from our 

Metro 911 counterparts and others in our community regarding our 

communications relating to the incident. CropScience sent a representative from the Institute facility to Metro 911 site who was in 

direct communication with our EOC.’’ 

Commissioner Carper, did the official Bayer sent to Metro center 

provide you with all of the information you needed? 

Mr. CARPER. No, sir, because he didn’t know anything. With all 

due respect to the response from Bayer, the record reflects that the 

only reason they sent a representative was because I insisted on 

it due to their previous failure to give us information. I believe it 

was in December of the previous year. I believe December 28. 

That’s why they were there. 

I believe it was Mr. Curry, and I had a number of conversations 

with Mr. Curry, a nice person, but he didn’t know anything. Just 

like their security guard Steve at the gate, he didn’t know anything. As your Ranking Member says, alert the public about what? 

Now, the record is clear, we have them on tape. We don’t have 

to guess what they told us and what they didn’t tell us. They didn’t 

tell us anything. 

Mr. STUPAK. As commissioner, have you learned what chemicals 

your community may have been exposed to that night? 

Mr. CARPER. No, sir. I have learned more here today. I had to 

come to Washington, DC, to find this out. 

Mr. STUPAK. Mr. Dorsey, let me turn to you. You were at the 

Bayer site that night; is that correct? 

Mr. DORSEY. Correct. 

Mr. STUPAK. It is a PowerPoint presentation Bayer officials created 3 days after the incident. You can find it at tab number 5, 

page 11. The title of the slide is ‘‘Positive Points.’’ The first item 

on the list reads as follows: ‘‘Emergency response went very well. 

No significant complaints from the community and neighbors.’’ 

But in your testimony, you said you weren’t allowed into the 

plant until after 3 a.m., and you said you were only allowed in 

after a confrontation at the front gate, and even then you weren’t 

allowed to go to the scene of the explosion until nearly 5 a.m. in 

the morning. 

Mr. Dorsey, do you agree with Bayer’s claim that the emergency 

response went very well, and there were no significant complaints 

from the communities or neighbors? 

Mr. DORSEY. Absolutely not. You have heard the testimony and 

have it written before you. 

In my personal circumstance, I was at the front gate with the 

State emergency response director, Jimmy Gianato, and we were 

attempting to get into the facility. I was talking to my boss, the 

secretary of the Department of Environmental Protection, and he 

was speaking with the Governor. The questions were: Exactly how 


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bad is it? Exactly what was released? All of the questions you have 

heard. 

I went to the front gate and said, look, I need to get in here. And 

the fellow at the front gate said, I will let you talk to somebody on 

the phone. I said, I am not leaving until I get into this plant. Mr. 

Gianato came immediately after that and said, if we don’t get in 

here, there are going to be some State troopers who will show up, 

and they will start arresting people. So at that point we were allowed into the plant, and as the other people were earlier, we were 

ushered into a side room away from the main communication center, and Mr. Crosby came in and Mr. Way, and eventually we made 

our way to the incident site. 

Mr. STUPAK. So it was only after threat of arrest that you actually got in? 

Mr. DORSEY. Yes, sir. 

Mr. STUPAK. Let me ask you this: In the testimony of Bayer’s 

president and CEO, he states that the only real problem with the 

emergency response that night was you didn’t receive immediate 

reassurances that you were safe. Do you agree that you needed reassurance that night, or did you need actual information about 

what was going on? 

Mr. DORSEY. We needed real information. As someone stated earlier, the plant’s fire department did a good job. That was a major 

incident, and they did well in there. But it is a dangerous plant. 

There are miles of piping, and there are thousands of tanks. We 

needed to know what was happening. The Governor himself was on 

the way. The 28th was the night of the Democratic National Convention. He flew in. At about 5:00 he got there himself. So that was 

the level of concern that was there that night on the State level, 

and we weren’t getting what we needed. 

Mr. STUPAK. Thank you. 

Mr. Walden, questions, please. 

Mr. WALDEN. Thank you, Mr. Chairman. 

Mr. Crawford, I want to get at the issue of who was controlling 

the flow of the information inside the plant to outside of the plant, 

and I believe you said the security guard who you talked to or others talked to said, this is all I can say. I can only tell you there 

is an emergency. That is all I am allowed to say, language such as 

that. 

Who was controlling what the security guard was allowed to say; 

do we know? 

Chief CRAWFORD. I don’t know, sir. 

Mr. WALDEN. Mr. Carper. 

Mr. CARPER. I know now because I have talked to them. They 

have changed their procedures. They didn’t have an on-site manager present. Remember, now, to some extent, to put this in perspective, they have had one heck of a bad explosion. They have had 

at least one death, and it turns out two deaths, and they are trying 

to sort through that and assess it. But frankly, Mr. Walden, had 

I known then what I know right now, I would have ordered an 

evacuation. I would not have let those people stay in that footprint 

if I had known a 100-pound piece of shrapnel was flying through 

the air, and I specifically asked about the MIC tank. 

Mr. WALDEN. What were you told? 


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Mr. CARPER. Listen, we get more information on a car wreck 

than we got that night. This was the most unreported. We were led 

to believe everything was OK. Obviously if we had known that, I 

think any first responder, a trooper, anybody knowing what that 

plant has, knowing the damage to that vessel, would have ordered—at least prepared an evacuation at the very least. We didn’t 

do that. 

Mr. WALDEN. So who was telling all of these people to keep quiet, 

in effect, and just say, we have an emergency and we are dealing 

with our emergency? 

Mr. CARPER. As I understand it, they had basically two command 

structures in the plant. You would have to ask them. That is their 

responsibility. And remember, it is a fixed-asset industrial plant, so 

we generally rely upon them to tell us what they have and what 

we are supposed to do. It is not like a train accident or a commercial incident. 

Mr. WALDEN. I guess that is what I am getting to. I assume that 

they have an emergency plan, and I assume they have protocols, 

and I assume you have worked those out together so when there 

is an incident, boom, this is what we do. It sounds like there was 

one in 2007. It sounds like they pledged that any communication 

problems then had been fixed. And now you get to the big one or 

near big one, and there isn’t the communication that is essential 

in a situation like this. 

Mr. CARPER. I can explain what we did right and what we did 

wrong. I can explain what we have changed. But, frankly, I think 

they will have to explain their lack of giving us information. 

If their position is they gave our 911 center adequate information 

to make an intelligent decision, I disagree with that. 

Mr. WALDEN. There is breakdown, clearly. 

Mr. Bresland, I have been working through your West Virginia 

accent, and I have been trying to figure out what part of West Virginia that originates from. 

I appreciate the work you are doing to try and bring about safer 

plant operations. I want to touch on a couple of things. First of all, 

I believe you said there were three safety interlocks that were disabled? 

Mr. BRESLAND. That is correct. 

Mr. WALDEN. What were those? 

Mr. BRESLAND. Those were safety interlocks that controlled the 

flow of the methomyl solution into the residue treater, and they 

had been bypassed to allow the temperature to get up to what they 

considered to be the appropriate temperature for the decomposition 

of the methomyl to take place under normal circumstances. 

However, in this particular case they were pumping very concentrated methomyl into the reactor. Again, the safety interlocks 

were bypassed, and you filled the tank with a concentrated solution, which resulted in the explosion. 

Mr. WALDEN. How long had these interlocks been disabled? 

Mr. BRESLAND. It is my understanding that on a routine basis 

when they were starting up the residue treater, the interlocks 

would be bypassed until they got the temperature up. 

Mr. WALDEN. Is that a standard operating procedure then? 

Mr. BRESLAND. No. Safety interlocks are there for a reason. 


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Mr. WALDEN. I always believed that when I was dealing with 

transmitter repair. 

Mr. BRESLAND. There is no logical reason to bypass the safety 

interlock. You are putting the facility in danger when you do that. 

Mr. WALDEN. Let me ask you this question, because there is a 

lot of concern among us and, I assume, most people observing this. 

If you have these projectiles flying around, and you have the MIC 

tank nearby, and there is this safety screen of some sort that was 

there, did it take a hit? Did any of those projectiles hit that safety 

screen? 

Mr. BRESLAND. There was a photograph shown early on of the 

safety screen, and it did show some indentation. 

Mr. WALDEN. I didn’t know if that was the design or if that was 

something that happened during the explosion. Do you know the 

answer to that? 

Mr. BRESLAND. What my lead investigator says, that was caused 

by a sagging of the material. 

Mr. WALDEN. Because of heat? 

Mr. BRESLAND. Probably just because of its age. It had been 

there for some time. 

Mr. WALDEN. Do you know in your evaluation of that safety 

screen, would it have withstood the force of those projectiles had 

it taken a direct hit? 

Mr. BRESLAND. Well, we are going to look at a couple of issues. 

Number one, what were the design criteria for that safety screen? 

Was it designed to take, or did somebody make an assumption that 

there could have been a series of explosions and it could be hit by 

projectiles? What strength was it built to? 

Mr. WALDEN. But we don’t have an answer to that? 

Mr. BRESLAND. We don’t. That is part of our continuing investigation. 

Mr. WALDEN. I represent a district that has one of the chemical 

facilities from the Cold War era, and we are in the process of destroying the mustard gas and the nerve agents, and I know there 

is an array of air sensors all around that facility. Do you believe 

in your investigation that there are adequate air sensors either at 

the plant or outside the plant or around the perimeter or further 

out, wherever a plume might go? 

Mr. BRESLAND. Well, with a chemical like methyl isocyanate, I 

think it is very important that you have air sensors that would specifically measure the concentration of methyl isocyanate and allow 

both the facility and the emergency responders and the community 

to know. 

Mr. WALDEN. And are there adequate sensors today, from your 

perspective? 

Mr. BRESLAND. I will have to wait and hear what the Bayer people have said about what they have done since the investigation. 

We were not able to get any information on the adequacy of the 

sensors. 

Mr. WALDEN. Why? 

Mr. BRESLAND. My understanding is that they were not working 

at the time. 

Mr. WALDEN. The air sensors were not working? 

Mr. BRESLAND. That is my understanding. 


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Mr. WALDEN. One final question. Mr. Crawford, in terms of the 

shelter-in-place system and how that works, is there an audible 

alarm that goes off in the communities that they need to shelter 

in place? This was obviously very late at night. 

Chief CRAWFORD. According to our plan, you have a ring-down 

system. 

Mr. WALDEN. Ring down, meaning it calls people in their homes? 

Chief CRAWFORD. Yes. 

Mr. WALDEN. Did that come off correctly? 

Chief CRAWFORD. No. 

Mr. CARPER. It was a miserable failure. 

Mr. WALDEN. Why? 

Mr. CARPER. Well, the vendor that sold it to us hadn’t scrubbed 

the system. We did too large of an area. We tried to do it in one 

time. It just couldn’t handle it. We have since changed the vendor. 

Mr. WALDEN. Have you run a test of the system since you 

changed the vendor? 

Mr. CARPER. Yes. 

Mr. WALDEN. Does it work now? 

Mr. CARPER. It is better. It is still not perfect. It is just part of 

the tools in the toolbox. We have EBS, the media, ring down, outdoor warning sirens. We have got a good system, but you have to 

know. To hit the button, you have got to be told. 

Mr. WALDEN. I understand. I would encourage you to do the test. 

We ran into the same problems when they were ramping up the 

same sort of alert systems out in my district for the decommissioning of the chemical plant. They had false alarms that put the 

signs up on the freeway to flee. It was a little problematic. 

Mr. CARPER. We now have what is called a handshake system on 

our system. Thanks to Congress and Homeland Security money, we 

actually know when a siren goes off. We do routine tests of all of 

these things. 

But again, we have cable interrupt; but you have to have the television set on. 

Mr. WALDEN. That is why the ring down and the audible alarm 

systems are critical in the middle of the night. 

Mr. CARPER. And somewhat limited, but very effective in the Institute area. 

Chief CRAWFORD. And under the cable intercept, that was one of 

the things that was identified in the after-action review and critique. 

Mr. WALDEN. Cable intercept, as in the emergency alert system? 

Chief CRAWFORD. With the cable company. 

Mr. WALDEN. And did the emergency alert system work, both 

radio, TV and cable? 

Chief CRAWFORD. There was a glitch in that, I believe. 

Mr. WALDEN. How so? What was the breakdown there? 

Mr. CARPER. Well, we have different cable companies. We have 

some problem with that. We have our EBS, our emergency broadcast, now working pretty well. But remember, they are just part of 

the way to warn people. 

Mr. WALDEN. I understand. 

Mr. CARPER. We want them all to work. They should work every 

time. 


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Mr. WALDEN. Thank you. My time has expired. 

Mr. STUPAK. Ms. Sutton for questions, please. 

Ms. SUTTON. Thank you very much, Mr. Chairman, and thank 

you for your very informative testimony. 

On the next panel, we will hear from Bayer CropScience president and CEO William Buckner, but I want to share with you a 

portion of his prepared testimony and get your reactions to it. 

After the August 2008 explosion, the Chemical Safety Board received thousands of pages of documents from Bayer about its 

plant’s operations. In February, more than 4 months after the accident, Bayer informed CSB that many of these documents contain 

sensitive security information, or SSI, as we have heard here today. 

And under law, SSI cannot be disclosed to the public. 

So let’s look at why Bayer took this position, according to the testimony of Mr. Buckner. He admits that his company initially hoped 

to use SSI to avoid responding to the Chemical Safety Board’s request for information about the plant’s large stockpile of MIC. 

When that failed, Bayer tried to invoke SSI to block discussion of 

the MIC with the general public. 

So, Mr. Bresland, in your experience at the CSB, has any other 

company ever tried to withhold documents from the Board under 

the guise of homeland security? 

Mr. BRESLAND. We have been in operation since around 2001, 

2002, and we have completed approximately 55 major investigations. This is the first time that we have been exposed to this issue 

where someone came in and said, all of the documents that we 

have submitted to you, you’re eligible to receive them and look at 

them, but you can’t tell anybody else about them. 

For example, when we look at the list of some of the documents 

that they told us we couldn’t tell, an incident, near miss on environmental release reports, these are basically public documents. 

Operator training records, I just could not understand how these 

would be considered security related. To me—and I worked in the 

chemical industry for 35 years. I ran chemical plants, and I know 

how they work. I know the difference between security and process 

safety, and the documents that they were asking to be considered 

as SSI were not security documents, they were process safety documents, the sort of documents that we on a routine basis get from 

all of the companies that we investigate. And we routinely get 

them cooperatively from the companies. Then we use those documents in our reports. 

We are having a public meeting in West Virginia on Thursday 

evening, and we have a PowerPoint presentation that will give a 

lot of information about what happened at this accident, much 

more than we have time to present today. There will be no SSI in 

that. We worked with the Coast Guard, and they took out one item 

from our PowerPoint presentation. Everything else is what we 

would normally present. 

However, if we have to go and look at 2,000 documents, or in the 

case of our BP Texas City accident where we got 6 million documents, if we have to look through 20 percent, a million documents, 

we might as well pack up and go home because there is no way 

we can do these investigations under these circumstances. 

Ms. SUTTON. Mr. Bresland, thank you. 


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Mr. Buckner in his testimony says, ‘‘We frankly admit’’ that one 

of his company’s goals was to ‘‘avoid making the controversial 

chemical MIC part of the public debate during the incident.’’ 

He further acknowledged that 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. 

So, Mr. Dorsey, I would shift to you. We have examined the statute and regulations at issue here, and nowhere can we locate a provision allowing a company to conceal information in order to limit 

negative publicity. That is not a proper basis to label something as 

SSI, is it? 

Mr. DORSEY. Not in my opinion, no. As I touched on briefly in 

my testimony, there are a number of laws, Federal and State, that 

require the submission of information on processes, waste streams, 

et cetera, which could at least potentially be covered under these 

types of claims. And I think that is not what was intended by the 

coverage under that type of statute. 

Ms. SUTTON. And yet Mr. Buckner acknowledges that public discussions and CSB recommendations about alternative technologies 

and inventory amounts would be a sensitive matter for the company. And he concludes, ‘‘We concede that our pursuit of SSI coverage was motivated in part by a desire to prevent the public debate from occurring in the first place.’’ 

If I can shift very quickly, and I know I am running out of time, 

Ms. Nixon, I know you have been involved with the safety of chemical plants in West Virginia for two decades; is that correct? 

Ms. NIXON. Yes, it is. 

Ms. SUTTON. Have you ever heard anything like this, the president of Bayer basically admitting in his testimony that his company was abusing this process in order to prevent the public debate 

about MIC? What do you think about that? 

Ms. NIXON. I have never heard anything like that. I do know 

that 1 month after the incident occurred last year, the community 

group People Concerned About MIC held a forum in Institute. At 

that time the company refused to attend their meeting. They waited another month to hold a meeting of their own. Even with that, 

we still haven’t been given the information as to what was in the 

plume or the health risks that the community may have been exposed to. 

Ms. SUTTON. Do you have an opinion about what should happen 

to a company for doing this? 

Ms. NIXON. Many in the community, I can tell you, would like 

for the company to stop producing the chemical. Some would like 

the company to close. 

I would like the company to be a safe company, to eliminate the 

production of MIC so close to a university and to communities that 

are surrounding it. As I said, it takes less than 15 minutes for a 

plume to engulf the communities of Institute, and across the river 

to Jefferson and St. Albans. 

Ms. SUTTON. Thank you. 


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Mr. STUPAK. Thank you, Ms. Sutton. 

Mr. Burgess, questions. 

Mr. BURGESS. Thank you, Mr. Chairman. 

Just continuing on that thought, Mr. Carper, you may not be the 

correct person to ask this, but historically how has this evolved 

that there is such close proximity with neighborhoods and institutions of higher learning? 

Mr. CARPER. Kanawha County and Charleston, West Virginia, at 

one time was the chemical center of the world. We had over 50,000 

to 70,000 chemical jobs from one end of the county to the other. 

West Virginia is blessed with natural resources. We have got good 

water. Union Carbide started there, and chemical plants flourished. West Virginia State University at one time was an Historically Black College. It was built there. We didn’t think about things 

in those days. People just kind of got along, and they melded into 

each other. 

Mr. BURGESS. Now, the storage of the methyl isocyanate, is that 

recent? 

Mr. CARPER. No. They have produced that, and you would have 

to ask them since when, but that has been a multiple-decade activity at that plant. I think it is the only one now existing in the U.S. 

Mr. BURGESS. Part of this goes back to what Mr. Walden was 

asking. Presumably recognizing today that we have got, in juxtaposition to an institution of higher learning and neighborhoods, 

a chemical that has been shown to be very, very toxic if it is released all of a sudden, what sort of plans—do you and the chemical 

plant work on disaster drills? Do you have an ongoing dialogue? 

Mr. CARPER. They might get an F for this response, but I will 

give them an A-plus for that. They are very good about that. They 

are working with us. We have worked quite well with the first responders as far as emergency planning and preparedness. They 

will tell you, I suspect, that they are in the process of doing a drill 

in the next couple of months. They are very cooperative on that. 

That is not a problem. 

Mr. BURGESS. Just one last question. This is just for background 

information, and I don’t mean to imply anything by it. How many 

jobs are at this plant? What is the economic impact to the community? 

Mr. CARPER. It is significant. I think in the Larvin Unit, it is 140 

or some. It is better for that to come from them. 

Listen, these are West Virginia workers. They are good, safe 

workers with a long history in Kanawha County and West Virginia 

of producing necessary chemicals safely. 

Mr. BURGESS. I appreciate that point. Certainly in our Texas 

City area where we have a long history of refining, it is a similar 

environment. 

Now, Mr. Bresland, you said you could provide us with a list of 

the products of decomposition from the fire of the methomyl that 

was released, and you will do that? 

Mr. BRESLAND. Yes, sir. I don’t know if we gave you the most upto-date PowerPoint presentation, but in our presentation on Thursday night, we do list those chemicals. It is in the PowerPoint presentation that I have here. 


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Mr. BURGESS. That is part of our record? I don’t know that I 

have that. It is not urgent that I have it right now, but I would 

like to see what the compounds are that we are talking about. 

Mr. BRALEY [presiding]. It is slide 37. 

Mr. BURGESS. What is next from your perspective? You have a 

hearing or meeting Thursday night? 

Mr. BRESLAND. We have a meeting on Thursday night that is 

being held at West Virginia State University, and there will be a 

presentation by our investigators to the community. And we have 

invited the whole community to attend the meeting, and there will 

also be a panel discussion when we have some of the emergency 

responders, some of the people who are here. 

Mr. BURGESS. So your intended audience is the community? 

Mr. BRESLAND. Yes. The purpose of the meeting is twofold. One 

is to tell the community here is what we have discovered so far; 

and also hear from the community what are their concerns or 

issues with this incident and/or our investigation. 

Mr. BURGESS. Looking at this list, I can almost imagine what 

their concerns would be. These are the by-products of burning 

methomyl that I am looking at on page 37? Methomyl thermal decomposition, hydrogen cyanide, methyl isocyanate? 

Mr. BRESLAND. Yes, I have them here. 

Mr. BURGESS. Again, I can imagine what their concerns are going 

to be. 

At this point I don’t know that we have established whether the 

sensitive security information argument is correct or not, but are 

there going to be issues surrounding sensitive security information 

that are going to be discussed at your meeting? 

Mr. BRESLAND. At our meeting we plan to tell the public here is 

what happened in the incident. We don’t plan on getting into too 

much of a discussion of SSI, because at least in terms of our 

PowerPoint presentation, we have reached agreement with the 

Coast Guard on what is SSI. 

Mr. BURGESS. So you have? 

Mr. BRESLAND. We sent it to them, and they said there is one 

issue that we would not like you to disclose, and that was the time 

of day at which the methyl isocyanate was transferred within the 

facility. 

Mr. BURGESS. OK. Just in general, with having dealt with this 

problem and the issues about sensitive security information, I’m assuming it has hindered your work so far. Is that an accurate assumption on my part? Do you see it as continuing to hinder your 

ability to do this investigation going forward? 

Mr. BRESLAND. Don’t take this the wrong way. It is a less than 

accurate assumption. It has just about killed us. We have spent a 

lot of our time dealing in a very cooperative manner with the Coast 

Guard; but internally within our agency, and we only have 37 people, we are a small agency, the team that has been doing the investigation has been tied up with this. The same team is investigating 

a major explosion at a sugar refinery in Georgia that killed a number of people. That investigation has basically been put on hold 

until we resolve this issue. It has really taken up a lot of our time. 


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I keep getting calls from the news media about this and doing 

interviews. I don’t want to underestimate this at all. It has taken 

up a lot of our time. 

Mr. BURGESS. Going forward is this something that is going to 

quickly be resolved after today? 

Mr. BRESLAND. My fervent hope is after today we will move 

ahead. What I worry about is when we publish our final report, 

which is typically 100 to 150 pages long, and it is a technical report 

with lots of information, we will send that to the Coast Guard, and 

they will review it also. We will be going back and forth with this 

issue when we do our final report. I do worry about that. 

Mr. BURGESS. As part of your investigation, do you involve yourself at all as to whether or not there is adequate security surrounding the plant? If there is sensitive security information that 

it is better not get out into the public domain, is there robust 

enough security around the plant to protect it from the type of 

damage that we might want to prevent someone from knowing 

about? 

Mr. BRESLAND. As someone who worked in the chemical industry 

for many years, we are obviously concerned about security, but we 

don’t get involved in evaluating the security at the facility. We 

don’t feel that we are qualified to do that. We leave that to the experts, either Homeland Security or the Coast Guard in this case. 

Mr. BURGESS. Thank you. 

Mr. BRALEY. The Chair recognizes himself for 5 minutes. 

One of the reasons why this is such an important conversation 

is because it is easy to understand why the citizens of Kanawha 

County are angry and frustrated. The Washington Post reported on 

Sunday: ‘‘West Virginia chemical plant shut down, fined $2 million 

over emissions. State and Federal authorities announced Monday 

that Dupont and Lucite International have agreed to pay $2 million to settle air pollution violations at a West Virginia plant. The 

violations stem from sulfur dioxide releases from a sulfuric acid 

unit owned by Lucite, but operated by Dupont at its plant in 

Kanawha County.’’ This announcement said Lucite voluntarily 

agreed to close the unit by next April. 

Mr. Carper, this gets back to the point you were raising earlier, 

Ms. Nixon, and that is this takes away jobs. And I assume that 

this county in West Virginia has a high unemployment rate, like 

many other counties in this country, and when you are not a responsible corporate citizen, and these plants get shut down, it affects people’s livelihoods. That is why I want to follow up on your 

earlier conversation, Ms. Nixon, about frustration and anger that 

this was happening again. I want to talk about the history of prior 

accidents. 

The committee’s investigation has determined that the August 28 

accident was not an isolated incident. The Institute plant has a 

long history of chemical accidents and failures to provide timely 

and actionable information to the public and first responders, both 

during the explosion and after. 

On December 28, 2007, just 8 months before, a chemical reaction 

caused a release at the Larvin Unit. Bayer’s own internal documents characterize the event as a ‘‘decomposition incident.’’ In 

plain English, dangerous chemicals escaped. 


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On August 13, 2001, shortly before Bayer took over, 10 workers 

received medical treatment from a chloroform leak at the Aventis 

portion of the Institute plant. In all, there have been as many as 

11 chemical accidents at the plant dating back to 1985. 

Ms. Nixon, since you have lived through a number of these chemical incidents, have you ever been personally harmed by a chemical 

incident at the plant? 

Ms. NIXON. Yes. On August 11, 1985, there was a release of 

aldicarb oxime and methylene chloride. There were 135 of us that 

ended up in emergency rooms. When I say ‘‘of us,’’ I was one of 

them. We ended up in emergency rooms. 

Mr. BRALEY. What does this pattern of incidents that I just recited tell us about how confident we should be about Bayer’s commitment to being able to prevent another major chemical event at 

this plant? 

Ms. NIXON. There seems to be some sort of inherent process defect in the way that the process goes on, that it continually occurs 

in this facility, at least in the insecticide part of the plant. 

Mr. BRALEY. One of the things that concerns the committee is 

that the investigation has shown that there is not just a pattern 

of chemical accidents, there is also a pattern of accidents in which 

the community has demanded information from the company that 

was not forthcoming. For example, in a letter from Bayer to the 

EPA after the December 2007 incident, and this is at tab 27, the 

company admitted the following: Bayer CropScience is aware that 

area officials were frustrated with their inability to answer all 

questions that were being asked. We agree that Institute and 

Metro 911 can and should communicate more efficiently and quickly. Bayer acknowledged that they could do better, but the August 

episode has shown they have not lived up to their own promise. 

Ms. Nixon, you concluded your testimony by saying that the Institute residents have lost confidence in Bayer CropScience. What 

role has Bayer’s continuing failure to provide adequate information 

to the community played in that loss of confidence? 

Ms. NIXON. As I said, the company is in such close proximity to 

the community, that whenever there is a release, it is only minutes 

before it gets into the community. The lack of communication has 

caused a lot of concern among the community residents on what 

they have been exposed to from the chemicals that were released. 

Mr. BRALEY. Mr. Carper, you used a phrase that is very common 

to a lot of us, and that is the question of good faith. One of your 

colleagues, Mr. Dale Petri, who is the director of the Office of 

Emergency Services for the Kanawha County Commission, told 

members of the committee staff that it is a matter of building trust 

every time the plant has changed hands. So I ask you: How is 

Bayer going to regain your trust and the trust of your emergency 

personnel who selflessly serve in your community? 

Mr. CARPER. Mr. Braley, I don’t know if I can give you a clear 

answer on that. I know they are trying. I have met with Mr. Crosby, the plant manager, a number of times. They will tell you they 

are making changes. They are bringing in a full-time safety person. 

They are going to do a drill. They are going to do outreach to the 

community. 


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But, you know, I think part of their biggest problem now is this 

SSI thing. They are giving that acronym a bad name. If I was the 

Social Security Administration, I would make them quit using it. 

It really sends the wrong message. The fact that they are the very 

first company to ever do this; the fact that Congress, who wrote the 

law, says it doesn’t apply, maybe they ought to find something to 

do with their time and invest in rebuilding community trust. 

They have to have a transparent process. The community has to 

believe that they actually know the risk. That takes a long time. 

Mr. Petri is here with me. He has 25-plus years in the fire service. 

He is our emergency manager. He nailed that correctly. The plant 

has changed a lot, but they have to rebuild trust. That is not going 

to be an easy thing to do. 

Mr. BRALEY. Mr. Crawford, have you ever heard the phrase ‘‘action speaks louder than words’’? 

Chief CRAWFORD. Yes, I have. 

Mr. BRALEY. You have seen a lot of policies down on paper, I assume? 

Chief CRAWFORD. That is correct. 

Mr. BRALEY. It is one thing to have those policies on paper, and 

it is another to act like you believe in them; would you agree with 

that? 

Chief CRAWFORD. Yes, I do. 

Mr. BRALEY. Is that the type of commitment you are looking for 

from Bayer is a demonstrated proof that they really have an action 

to commit to carrying these policies forward to protect the citizens 

of your community? 

Chief CRAWFORD. Yes, and we want to do what is right. From a 

first responder’s point of view of making a decision, to a plant manager making those decisions, we need to do what is right and be 

responsible. 

I mean, we are all held responsible. That is the bottom line. 

Mr. BRALEY. Thank you. 

The Chair now recognizes the gentlewoman from the Virgin Islands for 5 minutes. 

Mrs. CHRISTENSEN. Thank you, Mr. Chairman. 

Before I ask my question, there is an extensive body of evidence 

that toxic plants are more likely to be located near minority communities, so I asked for the demographics of Kanawha County and 

was told 91 percent white, 8 percent black, 1 percent other. But I 

see if you look at the closer-in picture, and we have heard from Mr. 

Carper, that it is largely a minority community. 

I consider students at a university to be a particularly vulnerable 

population. Ms. Nixon, do you know if there was any specific information given? We know that the general community and the public 

safety officials didn’t get much, but was there any kind of communication specifically to West Virginia State? 

Ms. NIXON. As you will note, the incident occurred August 28, 

2008. This was the beginning of the year for the students at West 

Virginia State University. They had gone through orientation. They 

had heard this information. They had heard about shelter in place 

and chemical plant being there, along with all of the other information that they received as new students on campus. This was on 


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a hot evening in August. The students were outdoors, and that is 

when the explosion occurred, and they are close to the plant. 

Mrs. CHRISTENSEN. I see that. 

Ms. NIXON. They did receive information during orientation, but 

it takes drills and things before it is learned. 

Mrs. CHRISTENSEN. But no specific information that evening? 

Ms. NIXON. I believe some of the dormitory captains did advise 

their residents to go inside and shelter in place. But some students 

were outdoors. 

Mrs. CHRISTENSEN. That was on their own? 

Ms. NIXON. On their own, yes. 

Mrs. CHRISTENSEN. Although we don’t know specifically what 

chemicals might have been in the air, have you seen any public 

health activity in the area surveying individuals? We have heard 

some of the kinds of symptomatology from some of the possible 

chemicals. Has there been any public health surveying of the population? 

Ms. NIXON. I do know that the Kanawha County Poison Control 

Center was very frustrated with the lack of information that they 

had received also. That was brought out at one of the critique 

meetings that was held in the Kanawha Valley. 

The question that people had about their gardens and whether 

they should eat from their gardens, there was no direct information 

coming from the plant. When the plant manager was asked that, 

all he said was, you usually wash your garden plants before you 

eat them. And there had been reports about residue being on the 

plants after the incident. 

Mrs. CHRISTENSEN. We have heard, and you have mentioned the 

bill that was passed this year, and it requires that businesses report industrial incidents. The incident was reported; there was just 

no specific information on which to make a determination to inform 

and protect the public. From what you know of the bill, do you 

think it goes far enough? It requires notification? I have not seen 

the bill. Does it satisfy you? You said that you can’t rely on the 

company. Does this bill reassure you in talking to the public? Is the 

public feeling more protected? 

Ms. NIXON. I haven’t had a chance to review the whole bill because it was just passed this spring, and it is April, and I am here, 

and so I haven’t had a chance to review the full content of the bill. 

Mrs. CHRISTENSEN. Mr. Bresland, Bayer is the only company in 

the United States that makes and stores large amounts of MIC, as 

we understand it, and I would like to show a photograph of the section of the Bayer plant where the explosion occurred. It should 

come up on the screen, CSB 22. I think that Mr. Walden’s line of 

questioning and your responses have already determined that the 

residue tank could have gone just as easily in the other direction 

into the MIC tank. If that 2-ton residue tank had blasted into the 

MIC tank, it is possible that MIC could have been released into the 

surrounding communities, correct? 

Mr. BRESLAND. That is correct. In this photograph, the accident 

takes place in the middle right of the photograph, and the MIC 

tank is the tank that is marked on the left-hand side. 

Mrs. CHRISTENSEN. This wasn’t the first explosion in this facility, 

as we have heard. We regret the loss of life, and we extend our 


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sympathies to the families as well, but in 1993 there was another 

explosion. 

My question is why in the world is Bayer putting the community 

at risk by storing large amounts of this deadly chemical in a tank 

that is vulnerable to these kinds of accidents? MIC doesn’t need to 

be stored in that way. There are safer alternatives that exist. We 

had a near miss in August. We might not be as lucky next time. 

As part of the report, will CSB make a recommendation as to 

whether Bayer should adopt alternative technologies that do not 

require storage of large amounts of MIC? 

Mr. BRESLAND. After the Bhopal incident in 1984, there were at 

least two major manufacturers of MIC. One was Dupont, and one 

at that time was Union Carbide. Dupont, within a very short period of time, switched their process to a type of process that ultimately gives the same product, which is a similar product to the 

one that is being made at Institute, but they switched the process 

to one in which MIC was formed, but immediately used, so there 

wasn’t any—and that operation or facility is still there. So they are 

manufacturing MIC, but there is only a very minute amount that 

is—that is stored. 

Mrs. CHRISTENSEN. So are you going to make a recommendation 

in your report? 

Mr. BRESLAND. We’re certainly going to make a recommendation 

that Bayer explain to us what would the issue be that would prevent you from doing this. 

Obviously, there is a technical capability. I don’t know if that capability belongs to Dupont. I don’t know if that’s available to other 

manufacturers and then there would be an economic evaluation 

that they would have to do as well. But certainly keeping in mind 

the community interest in this, I’m sure that Bayer will be actively 

moving in this direction to look at this and come up with an evaluation, and that would certainly be a recommendation that we 

would make. 

Mrs. CHRISTENSEN. Thank you. 

My time is up, and I have to go to the floor, but I will try to return. 

Mr. STUPAK [presiding]. Thank you. 

Let me follow up with that, if I may. 

Are you familiar with a report reducing the storage of methyl 

isocyanate at the Institute in West Virginia? It is a 1994 report, 

November 12, 1994, by—community groups put it together. Are you 

familiar with that report at all? 

Mr. BRESLAND. I know the report has been written. I haven’t 

read it. 

Mr. STUPAK. Again, this report is 15 years ago and is after Bhopal. In the report it says, the plant may be a disaster waiting to 

happen. They talk about a 1993 incident in which there were numerous points of neglect by the company management, including a 

company-wide yield enhancement program that accelerated production outputs at the plant without ensuring adequate safety reviews. 

Looks like we have the same thing here. We have a new residue 

treater being there. We have it jerry-rigged, a bypass system put 

on it. So the safety valves—the interlocking safety valves—you 

don’t have any monitors, air monitors, no video cameras. It seems 


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like we have the same thing. Because it says here that a worst-case 

MIC release at the plant could cause deaths for a 9-mile radius and 

injuries for up to 28 miles from the plant. 

I went on and read this report; and it said the plant here at Institute, Virginia, stores 3 times more than actually was released in 

Bhopal. 

And as to your point, it went on to say that Dupont, through a 

no-storage continuous feed system, whatever they need that day 

they produce it, they use it. So you’re not storing this MIC chemical. And the Israeli firm had found different ways of making the 

same product with different materials, avoiding the use of MIC entirely. 

Again, this is 15 years ago. I’m sure science has progressed in 

15 years. What is the purpose of using MIC then? If that might be 

one of your recommendations, why would you need to use this dangerous chemical stored in such large volumes? 

Mr. BRESLAND. The issue I think is more the amount stored at 

the facility. Is there a way to make it and use it immediately? 

I used to run a large chemical plant in Philadelphia. We had a 

major explosion. As a result of that, we did away with the chemical 

that caused that explosion. I was a little skeptical about it when 

it happened, but that plan has been running very successfully ever 

since it was rebuilt without the storage of this dangerous material. 

Mr. STUPAK. You could use a day’s supply—— 

Mr. BRESLAND. We didn’t store any at all. We zapped it on 

through. It went from one process unit to another. 

Mr. STUPAK. Let me just ask one question, and if Mr. Walden 

has any follow up we’ll go to the next panel. 

This blast blanket—appears to be some controversy whether or 

not it has gone as we said in our opening statement, but we just 

received an e-mail saying that part of it’s still at the plant. After 

an accident like this occurs, you are in charge, right? 

Mr. BRESLAND. Yes. 

Mr. STUPAK. The Chemical Safety Board? So if they were to move 

the blast curtain or blanket, they would have to ask you to remove 

it. 

Mr. BRESLAND. That would be my assumption, that they would 

ask us, if you were moving a particular piece of equipment that is 

involved or at least peripherally involved in the incident. 

Mr. STUPAK. So if part of it is still in the plant, you would be 

interested in your investigation of seeing this blast mat or blast 

blanket around the MIC? 

Mr. BRESLAND. Oh, sure, absolutely. We would be. 

Mr. STUPAK. You haven’t seen it since then? Since this investigation commenced? 

Mr. BRESLAND. Let me ask our—we have had an opportunity to 

take a look at it since—— 

Mr. STUPAK. I have no other questions. Mr. Walden. 

Mr. WALDEN. I yield to the last panel. 

Mr. STUPAK. Ms. Sutton and Mr. Burgess. I’m afraid to ask Mr. 

Burgess, because I know—— 

Mr. BURGESS. Yes, Mr. Bresland, I just have one last question on 

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ty mechanism. Do you have an idea as to how long that heater had 

been defective? 

Mr. BRESLAND. Well, it wasn’t that the heater was defective. It 

was during the start-up operation to get the temperature—to allow 

the temperature to rise to the appropriate temperature for the reaction to take place inside the tank. They had to bypass the 3 safety controls that were there—that were there with the purpose of 

preventing inappropriate reaction. 

Mr. BURGESS. Well, that, to me, though, suggests that the heater 

was inadequate to do the job that it was intended to do—— 

Mr. BRESLAND. That’s correct. 

Mr. BURGESS [continuing]. And so we had to rely on the heat of 

the chemical reaction to get us up to the ignition or the start-up 

temperature or whatever would be appropriate there. 

Mr. BRESLAND. Yes. 

Mr. BURGESS. How long had that—it just seems like—if you look 

for a root cause, we have an inadequate heater where we’re having 

to bypass and use a chemical reaction to make things work. It just 

defies logic on something as critical as that that you would have 

a nonfunctioning apparatus there. Buy a bigger heater, for Christ 

sakes. 

Mr. BRESLAND. I think Mr. Carper brought up an interesting 

point here. This facility was Union Carbide, and in our presentation later this week we’ll show the number of different owners 

that the facility has had. Every time you change corporate ownership, you probably bring in new management, new cultures, new 

safety cultures and ways of operating things. And this can be confusing for, well, for the employees, it can be confusing for the community. 

While one set of management might have an approach that we 

are really going to work closely with the community, another set 

of management might say, well, we don’t really need to deal with 

them too much. That’s in issue that may not be exactly involved 

in this instance. But when I see a facility in which ownership is 

changing, it—it raises some questions in my mind that—that that 

could be an issue. 

Mr. BURGESS. So in a brief answer to the question, the inadequate heating element likely predated the ownership of—— 

Mr. BRESLAND. Of Bayer? 

Mr. BURGESS. Of Bayer. 

Mr. BRESLAND. It probably was back there when this particular 

facility was built, when this particular operation was built. 

Mr. BURGESS. OK. 

Mr. BRESLAND. So it may have been there for years and years. 

Mr. BURGESS. Thank you, Mr. Chairman. 

Mr. STUPAK. Thank you. And let me thank this panel for your 

testimony today and your interest, and we will continue to work 

with you and hopefully get some legislative changes made. Thank 

you very much for your testimony. 

Mr. Bresland, you will stay with us for the second panel I take 

it? 

Mr. BRESLAND. Yes. 


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Mr. STUPAK. So I won’t reintroduce you again as the Chairman 

of the U.S. Chemical Safety and Hazard Investigation Board, but 

you can stay. 

Mr. BRESLAND. Do you want me to do my presentation again as 

well? 

Mr. STUPAK. Only if you wish. 

Mr. BRESLAND. No, that’s OK. 

Mr. STUPAK. We will call up our second panel of witnesses: Rear 

Admiral James Watson, who is the Director of Prevention Policy for 

Marine Safety, Security and Stewardship of the U.S. Coast Guard; 

Mr. William Buckner, who is the President and CEO of Bayer 

CropScience, LP; Mr. Nick Crosby, who is Vice President, Institute 

Site Operations for Bayer CropScience; and Mr. John Bresland, of 

course, is going to stay with us. 

It is the policy of this subcommittee to take all testimony under 

oath. Please be advised that you have the right under the rules of 

the House to be advised by counsel during your testimony. Do any 

of you wish to be represented by counsel during your testimony? 

Mr. BUCKNER. My counsel is present. 

Mr. STUPAK. Mr. Buckner, you have counsel? Would you, just for 

the record, want to identify them? You would have to answer questions, but any time during questioning if you want to stop and consult with your counsel you are allowed to. 

Mr. BARNETT. Bob Barnett principally with Williams & Connolly. 

Mr. STUPAK. OK, Mr. Barnett, very good. 

Please rise, raise your right hand and take the oath. 

Mr. Bresland, you don’t have to. You are still under oath from 

the last one. 

[Witnesses sworn.] 

Mr. STUPAK. Let the record reflect the witnesses have replied in 

the affirmative. They are now under oath. 

STATEMENTS OF REAR ADMIRAL JAMES WATSON, DIRECTOR 

OF PREVENTION POLICY FOR MARINE SAFETY, SECURITY 

AND STEWARDSHIP, U.S. COAST GUARD; WILLIAM BUCKNER, 

PRESIDENT AND CEO, BAYER CROPSCIENCE LP; NICK CROSBY, VICE PRESIDENT, INSTITUTE SITE OPERATIONS, BAYER 

CROPSCIENCE; AND THE HONORABLE JOHN BRESLAND, 

CHAIRMAN, U.S. CHEMICAL SAFETY AND HAZARD INVESTIGATION BOARD 

Mr. STUPAK. We will begin with a 5-minute opening statement. 

Admiral would you like to go first? If you want to pull that, press 

that button, get that green light on, we’ll be ready to go. 

STATEMENT OF REAR ADMIRAL JAMES WATSON 

Admiral WATSON. Yes, sir, thank you very much. 

Good afternoon, Mr. Chairman and distinguished members of the 

committee. Thank you for the opportunity to provide this testimony 

on the Coast Guard’s role and response related to the incident at 

the Bayer CropScience facility in Institute, West Virginia. I’m Rear 

Admiral James Watson, Director of Prevention Policy. 

At the outset, I would like to express my sincere condolences to 

the families, friends, and community of the 2 plant workers who 

lost their lives as a result of the explosion and fire. I would also 


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like to underscore the Coast Guard’s commitment to cooperate with 

those responsible for investigating this accident in order to assist 

partner agencies to help ensure these tragedies are prevented in 

the future. 

As a maritime first responder, I know the importance of having 

accurate information about hazardous chemicals that might be 

present at waterside facilities and fully support accurate disclosure 

of this information as required by law, including the disclosure to 

appropriate emergency preparedness officials under the Emergency 

Planning and Community Right to Know Act, EPCRA. 

As we also understand the importance of ensuring that safety investigators have access to critical information, that’s why we have 

ensured the U.S. Chemical Safety and Hazardous Investigation 

Board, CSB, has access to all the information regarding the Bayer 

CropScience chemical plant in Institute, West Virginia, including 

information that claimed to be security sensitive information, or 

SSI. I firmly believe that SSI requirements and EPCRA requirements can coexist for the benefit of the public in the current regulatory framework. 

As mandated by the Marine Transportation Security Act of 2002, 

MTSA, and in fulfillment of the Coast Guard’s regulatory responsibilities under the Port and Waterways Safety Act of 1972, the 

United States Coast Guard conducts annual safety and security inspections on over 3,200 regulated waterfront facilities. As the agency with primary responsibility for coordinating maritime security 

on America’s waterways, we also know that public disclosure of certain security related information can make facilities such as chemical plants more vulnerable to terrorists or nefarious acts or general security breaches. That’s why some information is designated 

SSI. 

The relationship between the Coast Guard and the CSB in this 

instance is actually an excellent example of two agencies working 

together to achieve the appropriate balance between public disclosure of safety details and protection of SSI. It successfully demonstrates that a balance of safety and security can exist without 

compromising the mission of either agency. 

Mr. Chairman and distinguished members of the committee, the 

August, 2008, incident at Bayer CropScience is an unfortunate and 

tragic event that highlights the importance of ensuring that all 

agencies responsible for oversight and post-accident investigation of 

chemical facilities work together in partnership with industry to 

prevent future accidents and be prepared to respond to incidents 

that may occur. We will continue to carry out our regulatory responsibilities as we support the Chemical Safety and Hazard Investigation Board’s investigation of the incident at process. 

Thank for the opportunity to provide this testimony on the Coast 

Guard’s role and response. I’m happy to answer questions. 

Mr. STUPAK. Thank you, Admiral. 

[The prepared statement of Admiral Watson follows:] 


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Mr. STUPAK. Mr. Buckner, your opening statement, please, sir. 

Pull that light forward and turn on the green light there. 

STATEMENT OF WILLIAM BUCKNER 

Mr. BUCKNER. Thank you very much, Mr. Chairman; and good 

afternoon to everybody. My name is Bill Buckner, and I am the 

President and CEO of Bayer CropScience LP. With me today is Mr. 

Nick Crosby, who is the site manager at our Institute site. 

On August 28th, 2008, we had a tragic accident at the Institute 

that claimed the lives of 2 of our colleagues at our facility. We are 

all saddened by this loss. We also regret that the community did 

not promptly receive assurance that it was not in danger. 

Over the last 7 months, we have been working with several agencies to examine this incident to learn from it and to improve our 

performance both to prevent another such accident and to improve 

our emergency communications. 

Our initial communications with Metro 911, while well intentioned, inadvertently created confusion and concern. Under our 

emergency response plan, further information about the explosion 

should have been provided to Metro 911 in a timely manner. 

Throughout the incident, our emergency responders did an excellent job under very difficult circumstances. Within a few minutes, 

the Institute’s community fire chief was at our facility and in direct 

contact with our incident commander’s team and Metro 911. Our 

emergency operation center opened several additional lines of communication to Metro 911. When our incident commander determined that the circumstances warranted a shelter in place for the 

2 nearby communities, we immediately communicated that recommendation to Metro 911. 

Again, however, we recognize that the initial communications 

contributed to confusion. That was never our intention, and we will 

do better. We have established new procedures, we have established dedicated radio and telephone lines to Metro 911, we have 

hired a new emergency services leader and provided new real-time 

chemical monitoring technology to Metro 911. 

We have received questions about whether the chemical, MIC, 

was released into the community during the incident. Let me assure you we monitor for this, and there was no indication that MIC 

was released the night of August 28th. Our control room operators 

continually monitor the MIC day storage tank in the affected unit. 

Our incident commander monitored the tank and noted that it was 

not compromised nor in danger of being compromised. Our emergency operations center and incident commander employed air 

monitoring technology and detected no potentially harmful chemical emissions that might threaten the community. Most important, 

the multiple layers of protection in place to protect the MIC day 

tank storage functioned as intended and it worked. 

There had been reports about the CSB’s investigation to the effect that our company used the law protecting sensitive security information, or SSI, to restrict the scope of the investigation. This 

was the first time that CropScience had ever considered the issue 

of SSI in the context of a Federal or State investigation. It is our 

understanding that it was also the first time that the CSB and the 

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perience demonstrates, there is need for further education and 

guidance regarding the interplay between the SSI regulations and 

CSB investigations. 

As explained in my written statement, we had various reasons 

for wanting to limit public discussion of these issues. For about 1 

week in January, 2009, there were some in our company who 

thought that the Maritime Transportation Security Act could be 

used to withhold certain information to the CSB regarding aspects 

of our MIC operations that were not involved in the accident. One 

week later after getting further advice we understood the company 

could not deny the CSB access to this information, only that the 

law might prevent the CSB from disclosing certain of this information publicly. 

The company sought guidance from U.S. Coast Guard officials to 

determine whether our understanding of the law was correct. We 

were told it was. 

CropScience did not withhold information from CSB on the 

grounds that it was SSI. SSI information was provided to the CSB. 

We complied with the law, and we cooperated with the CSB and 

the Coast Guard. 

In closing, we welcome the opportunity to participate in this 

hearing. We are proud of our company, our employees, and our 

community. 

Mr. Chairman, we stand ready to answer your questions. Thank 

you. 

Mr. STUPAK. Thank you. 

[The prepared statement of Mr. Buckner follows:] 


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Mr. STUPAK. Mr. Crosby your opening statement. 

Mr. CROSBY. I have no opening statement. I will stay with the 

statement of Mr. Buckner. 

Mr. STUPAK. OK. Thank you. 

We will go right to questions. 

Mr. Buckner, Exhibit 26 there in the book right there—that’s our 

document there. In there is some of the documents that Bayer was 

going to make under SSI, and 2 of them sort of caught my eye because I’m trying to figure out something here, the responsibility 

you had to let people know what chemical may have possibly been 

in that toxic cloud. 

So on page 13—it is BCD 10 004. It’s right on the top there. It 

is a copy of the BCS incident report for the exposure involving the 

MIC equipment for the accident that occurred late September, 

2008, including this response associated with procedures or protocols for working involving process equipment, process line equipment, opening particular equipment. 

Is there anything in there in your policies that tell you that you 

have to tell the emergency response people what kind of fire they 

may be fighting? 

On the next page, if you will—that’s page 13. On page 14, the 

only document in there indicates any MIC equipment installed on 

or near the Larvin Unit information shall include but not be limited to maximum inventories, emergency dump tanks, deluge systems, spill containment refrigeration system, back-up power, area 

detection alarms, include a copy of the most PHA and all the emergency procedures. So do you have any procedures at all in the company that you are supposed to communicate with emergency personnel if a fire or something occurs? 

Mr. BUCKNER. Yes, sir, we do have these procedures; and I would 

like to refer this question, if I could, please, to Mr. Crosby, who has 

got the background on this. 

Mr. STUPAK. Sure. Were these procedures in place on August 

28th, 2008? 

Mr. CROSBY. We have a number of procedures that we use for 

communicating with our outside responders. 

Mr. STUPAK. So why didn’t you tell the emergency response or 

Metro 911 what was in that cloud or what you suspected to be in 

the cloud that night? 

Mr. CROSBY. We have a very experienced and 24/7 incident commander on our site. That commander is on site 24 hours a day, 7 

days a week, 365 days a year. 

Mr. STUPAK. With all of that experience he would be able to 

make a decision and be able to tell you what might possibly be in 

that cloud, could he not? 

Mr. CROSBY. He did. 

Mr. STUPAK. Why didn’t you tell the communities and emergency 

responders? 

Mr. CROSBY. He was highly trained. He went to the scene—— 

Mr. STUPAK. Right. But my question is, why didn’t you tell him? 

I’m sure he’s highly trained, and I’m sure he’s an expert and had 

an idea what was in the cloud, the 3 to 4 miles that was drifting 

over Nitro and the rest of the area. And with the university right 


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up to your fence line, why wouldn’t you let people know what they 

were facing? 

Mr. CROSBY. He made the decision based upon his observation of 

the incident that there were no toxic chemicals being released 

from—— 

Mr. STUPAK. How did he make that determination with his expertise and his knowledge? Because your monitors weren’t working. 

Mr. CROSBY. We have—we have fence line monitors which were 

working. 

Mr. STUPAK. But on the west side you had no monitors. They 

were not working. 

Mr. CROSBY. The incident commander summed up, he used his 

experience, as any firefighter would in that particular situation, 

sir, and he drew the conclusion—we believe the conclusion was 

right, that there were no—— 

Mr. STUPAK. Let us assume for a moment that he was right. 

Then why wouldn’t you tell—if it wasn’t a problem, why wouldn’t 

you tell the emergency firefighters what it was? 

Mr. CROSBY. Our objective is to communicate to the firefighters 

and our emergency response center. There were 2 parts to—— 

Mr. STUPAK. Right. You are supposed to communicate with them. 

Aren’t you supposed to communicate on what the chemicals are? 

Mr. CROSBY. Yes, we are. 

Mr. STUPAK. Why didn’t you do it that night? 

Mr. CROSBY. Basically, the security guard who was accountable 

for relaying that message, he became overwhelmed by the incident, 

and he failed to relate information correctly to 911 in a timely 

manner. 

Mr. STUPAK. So you’re saying you told the security guy and he 

failed to do it? 

Mr. CROSBY. No, I—I’m the site leader and accountable for what 

goes on in the Institute site. 

Mr. STUPAK. So why didn’t you tell them what chemicals might 

possibly be in the cloud? 

Mr. CROSBY. Because we didn’t believe there were chemicals in 

that cloud. 

Mr. STUPAK. Why did you issue then in your plant shelter in 

place for all your employees? So if it is not dangerous to the outside 

community, why was it dangerous to your employees where you 

would put a shelter in place right after the thing exploded? 

Mr. CROSBY. The initial assessment of the incident indicated that 

there were no toxic chemicals being released. 

Mr. STUPAK. Then why do a shelter in place? 

Mr. CROSBY. That was validated by one of the volunteer fire department chiefs who arrived at the fence line on their side. 

Mr. STUPAK. No danger, then why do a shelter in place for your 

employees? It seems to be a contradiction. 

Mr. CROSBY. As the incident progressed, what happened, sir, was 

our incident commander became concerned because he felt nearby 

storage bins were potentially being compromised by the fire. They 

were starting to heat up. And so he ordered a precautionary shelter 

in place for part of the area. 

Mr. STUPAK. Why didn’t you tell the community that then? 

Mr. CROSBY. Excuse me? 


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Mr. STUPAK. Why didn’t you tell the community that? 

Mr. CROSBY. We passed the information through to Metro 911. 

We make the recommendations in place, and then Metro 911 informed the community. 

Mr. STUPAK. But, with all due respect, if you read the Metro 911, 

they constantly say, this was all I’m allowed to tell you. Basically, 

I know, but I can’t tell you. 

That was—Mr. Reck was it? Or who is the gentleman—— 

Mr. CROSBY. This was the security guard who initially on the 

gate who made the calls to Metro 911. 

Mr. STUPAK. Right, every time Metro 911 asked or called, it was 

like, I can’t tell you; this is all I can tell you; I’m not allowed. They 

wouldn’t even tell them if the Larvin Unit was damaged or if the 

chemicals were coming from there. All he was told is this is all I 

can tell. You we have an emergency. 

Mr. BUCKNER. If I could, please. 

Mr. STUPAK. Sure. 

Mr. BUCKNER. We acknowledged fully that we had a breakdown 

in these communications. It is my responsibility to make sure that 

these don’t happen again. I think we have the process in place 

again to ensure that it doesn’t happen again. 

Mr. STUPAK. Sure. But you even said, Mr. Buckner, in your opening statement that the lack of communication was inadvertent and 

there was confusion. 

Here is what your Bayer CropScience—Steve, at the main gate, 

who was communicating from Mr. Crosby. Mr. Crosby is dealing 

with Steve, and Steve would say, well, I can’t give out any information. Like I say, we’ll contact you with—with the proper information. 

Now this was at 22:39 hours. 

22:42 hours, 3 minutes later, well, I can’t give out any information until I get my information. 

Here he is at 23:15: What it is, we have an emergency at Bayer 

CropScience plant; and the only information I can give you is that 

you will need—you might want to alert the community—my supervisor informed me to tell you, alert the community there is an 

emergency in the plant right now. 

Here it goes on at 23:34: My instructions are to tell you to keep 

the community alerted, and we’re responding to the emergency. 

Even at 5:55 in the morning, the only thing they told 911 was 

we have an emergency. God, we all knew that. It blew up. We 

heard it. We saw the fire. We knew it was an emergency. Why 

didn’t you tell them something more? 

Mr. BUCKNER. It is my understanding, Chairman Stupak, that 

communications had been established through the emergency onsite control center with the Metro 911. 

Mr. STUPAK. You are talking, but you’re not saying anything to 

the community that needs to know. How about these kids right 

there, right on your fence line? Don’t they have a right to know? 

Mr. BUCKNER. Sure, and I have acknowledged the fact that we 

had a breakdown in these communications; and now we have policies in place to correct this situation. 


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Mr. STUPAK. Have you ever told the community yet what chemicals you believe went up in smoke that night in that cloud? Do we 

know? 

Mr. CROSBY. As far as our analysis is concerned, the chemicals 

that were released were consumed in the fire. We are not aware 

of any toxic chemicals that left the site that evening. 

Mr. STUPAK. How do you reconcile that with the Chemical Safety 

Board which basically says, well, if it is methomyl, some of it was 

burned, some of it was washed away in the fire, some of it evaporated up in the air. That’s their preliminary investigation. You are 

familiar with that, are you not? 

Mr. CROSBY. I’m not familiar with the absolute details, but we 

will be attending the hearing with the CSB on Thursday, and I expect to get more information. 

Mr. STUPAK. Let me help you. 

Methomyl solution sprayed from residue theater. Broken pipes 

and equipment. Some burned in fire. Some remain on ground and 

nearby equipment. Some might have been carried in the air. 

And the physical reaction to the exposure: Again, nervous system 

disruption, blurred vision, pinpoint pupils, tremors, muscle twitching, nausea, abdominal pain, respiratory arrest, coma, death, liver 

damage, anemia. I think we had 6 firefighters had respiratory 

problems and nausea, which sounds like there was exposure. 

Mr. CROSBY. Our analysis shows that there wasn’t. When 

methomyl—— 

Mr. STUPAK. How do you account for the 6 officers, firefighters 

being sickened? 

Mr. CROSBY. We are aware of 2 firefighters who visited a medical 

center that evening. They were both suffering from heat exhaustion, and they were treated and released. 

Mr. STUPAK. You say all your air monitors didn’t show anything, 

but you admit that some of your air monitors were not working. 

Mr. CROSBY. Our fence line air monitors were working that 

evening. 

Mr. STUPAK. They were not working, right? 

Mr. CROSBY. Our fence line air monitors were working that 

evening. 

Mr. STUPAK. But not the air MIC monitors, were they? 

Mr. CROSBY. I’m not aware of that fact. 

Mr. STUPAK. Wait a minute. You’re the incident command officer. 

You are telling me under oath you have no idea that part of 

your—— 

Mr. CROSBY. I was not the incident site leader. 

Mr. STUPAK. OK. Now, under oath, you’re telling me you didn’t 

know that part of your monitors, air monitors by the MIC unit, was 

not—— 

Mr. CROSBY. At that time, no, I didn’t, sir. 

Mr. STUPAK. OK. But, today, under oath, you know that part of 

them were not working, right? 

Mr. CROSBY. Yes, I’m aware now. 

Mr. STUPAK. You’re aware your cameras weren’t working, right? 

Mr. CROSBY. I was aware there was a video camera that wasn’t 

working that evening, yes. 


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Mr. STUPAK. OK. And you’re aware you bypassed the interlock 

safety valves on this retreat vessel, right? 

Mr. CROSBY. I’m aware of the full findings of the internal investigation. 

Mr. STUPAK. And you are aware that the computer training 

wasn’t adequate. 

Mr. CROSBY. We respectfully disagree with that comment. 

Mr. STUPAK. OK. So you learned all this stuff today. That night, 

you didn’t know that the monitors weren’t working and the videos 

weren’t working and had jerry-rigged this thing? 

Mr. CROSBY. As I said at the time of the incident, I was not 

aware the MIC monitors were not working. I was certainly aware 

that the monitors were working around the site, and we certainly 

completed our full investigation, and we understand now fully—— 

Mr. STUPAK. Well, when you and your expert decided there was 

no problem in the air, you must have looked at the monitors. When 

you looked at the air monitors, you must have realized some of 

them weren’t working. So when you made that decision that night 

you didn’t have all the information necessary to fully inform the 

public, did you? Because part of your monitors—you had to realize 

that night because you had to look at the screens, right? 

Mr. CROSBY. We used the full expertise that we got on that 

night, sir, that was available to us. I believe that those guys made 

a proper assessment of the situation. I believe that they drew the 

right conclusions. I believe that we made the right decisions. 

Mr. STUPAK. Mr. Walden for questions, please. 

Mr. WALDEN. Thank you, Mr. Chairman. 

Mr. Crosby, were you actually at the plant that night when this 

first happened? 

Mr. CROSBY. At the point at which the incident occurred I was 

actually about 3 hours away. I was attending a West Virginia business summit meeting. 

Mr. WALDEN. So you weren’t on site at the time of the event. At 

what point did you take command—or is that the right term? 

Mr. CROSBY. I arrived on site approximately about 2:30 on the 

Thursday morning. 

Mr. WALDEN. So 2:30 on Thurs—on the morning. This is overnight, right? So you are like 3 hours after the explosion. 

Mr. CROSBY. Three or 4 hours after the event, yes, sir. 

Mr. WALDEN. So were you in charge of the incident as you made 

your way there? If not, who was? 

Mr. CROSBY. What happens is that, in the event of an incident, 

we call our emergency operations center. 

Mr. WALDEN. All right. 

Mr. CROSBY. And the key role in that operation center was—actually, that seat was occupied by the production leader, who was 

in charge and accountable for that methomyl unit. 

Mr. WALDEN. Who is the production leader? Who was the person 

in charge since you weren’t? 

Mr. CROSBY. That production leader came in and took charge of 

the incident. 

Mr. WALDEN. Right. Who is that? 

Mr. CROSBY. His name is Rick Clay; and I believe he has been 

interviewed by your staff, sir. 


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Mr. WALDEN. And so he would have been the one overseeing all 

these decisions at that time, because you weren’t on site. 

Mr. CROSBY. I wasn’t on site, but he has a team of people who 

form around him. Typically, when we have—if we have an incident 

like this, we form a team of—an emergency response coordination 

team. There were 15 to 20 people or more in that room that night 

all advising him. 

Mr. WALDEN. I would hope you could appreciate our frustration 

in terms of the breakdown in communication. 

Mr. CROSBY. Absolutely. 

Mr. WALDEN. You’ve alluded to that, Mr. Buckner. I got to tell 

you, when I hear you use words like ‘‘well intentioned but inadvertently caused confusion,’’ I really think that’s lawyer speak and really misses the point. Because if—as you heard, I’ve been in the 

broadcast business, and it may have been well intentioned, but it 

sure doesn’t read that way in the transcript. It really reads more 

like either lack of knowledge or stonewalling, one of the two. And 

my interpretation is more stonewalling when you have the fellow 

at the gate saying, I’m not allowed to tell you any more, and we 

have an emergency. 

And I concur with the Chair. I mean, everybody knew that. 

Mr. Buckner, have you taken an opportunity to meet with community leaders and first responders leaders to make sure everybody is on the same page going forward? 

Mr. BUCKNER. No, sir, I haven’t. 

Mr. WALDEN. Is that something you would be willing to do? 

Mr. BUCKNER. Absolutely. 

Mr. WALDEN. Because as I watched you testify and watched their 

reactions I still think you have a communication problem here. I’m 

not—that’s for you all to figure out, but I just sense that there is 

a lot of mistrust right now, and I think if you were in their shoes 

you might feel that way. 

Mr. CROSBY. Could I just say a huge part of my own personal efforts now is maintaining or establishing and maintaining that outreach with our—what I would call our local stakeholders. I maintain personal communications with Commissioner Carper, with the 

folks of Metro 911, with our Congresswoman Capito. I work with 

the governor. I work with the community councils. It is my accountability, primary accountability to do that; and I am throwing 

myself 100 percent into that. 

Mr. WALDEN. I think that’s an important move, no doubt about 

it. 

I’m troubled, too, by the information Mr. Bresland seeks, has, 

wants. You’ve heard his testimony. Correct me if I am wrong, Mr. 

Bresland, but I sense from your testimony that you feel there is 

still an issue here about getting all the information you want or 

that you felt that there was a withholding of information that otherwise did not pose a security risk to share, correct? Am I summarizing that correctly? 

Mr. BRESLAND. We are still concerned about the issue of sensitive security information, and we still have 2,000 documents that 

have been stamped SSI by Bayer. So we’re—— 

Mr. WALDEN. Mr. Buckner, are you familiar with 2,000 documents stamped as SSI by Bayer? 


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Mr. BUCKNER. I was familiar with them, yes. 

Mr. WALDEN. And do you still believe they should be stamped 

SSI? 

Mr. BUCKNER. We sent this information out to outside legal counsel for their review. We didn’t believe we are qualified enough to 

interpret exactly what constitutes SSI in this situation. So we sent 

all these documents. And it was my understanding that 12 percent 

of the documents that we sent over to the outside legal counsel actually were classified as SSI by these individuals. 

Mr. WALDEN. Twelve percent. 

Mr. BUCKNER. Twelve percent, that’s correct. Or 90 percent— 

roughly 88 percent of them actually were not SSI. 

Mr. WALDEN. So of those 88 percent that your outside counsel 

say are not SSI are you freeing those up for CSB to have access 

to? 

Mr. BUCKNER. Absolutely. 

Mr. WALDEN. Has that happened? 

Mr. BRESLAND. The problem is not allowing CSB to have access, 

but the problem is our use of the documents. We are an agency 

that prides ourselves on being very public. We have public meetings. We have press conferences. We prepare videos. Our issue is 

what do we do with these documents that we want to use in our 

outreach—maybe not the exact document but certainly information 

in the document. What do we do with that in the future? I’m thoroughly confused by this. 

Mr. WALDEN. Let’s take that 88 percent of those documents that 

they say they don’t believe have SSI problems. Is there something 

else that poses a problem to you for your use of those documents? 

Mr. BRESLAND. No, no. 

Mr. WALDEN. So everybody is OK on that question. So it is the 

remaining 12 percent that’s at issue here. Am I tracking this correctly? 

Mr. BUCKNER. If I could, sir, we don’t have issue with the 12 percent. They have been classified as SSI. 

Mr. WALDEN. Who classified them as SSI? Your outside counsel? 

Mr. BUCKNER. Outside counsel. 

Mr. WALDEN. And did the Coast Guard make that call, whether 

they are SSI or not? 

Mr. BUCKNER. It is my understanding that’s correct. 

Mr. WALDEN. Have you reviewed these 2,000 documents, Admiral? 

Admiral WATSON. No, sir. The Coast Guard has not reviewed any 

of those documents. 

Mr. WALDEN. Have you sought to review them and not gotten 

them? Or how does the process work? 

Admiral WATSON. We review documents that are submitted to 

the Coast Guard. And SSI is a classification that can be applied by 

any covered person, which is a person who by the law and regulation is authorized to handle SSI information and sometimes create 

SSI information, as in the case of Bayer. The system is up to 

them—— 

Mr. WALDEN. It’s up to them to decide whether it’s classified or 

not, is that what you’re saying? 

Admiral WATSON. I’m sorry? 


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Mr. WALDEN. It is up to Bayer to decide what is SSI? 

Admiral WATSON. Yes, sir. There is 16 categories that require labeling a document as SSI. These are categories which would cause 

the information to be transportation security sensitive. 

Mr. WALDEN. And does anybody external of a company review 

that decision making? And, if so, who is that? 

Admiral WATSON. Well—— 

Mr. WALDEN. Couldn’t somebody just say, I don’t want all this 

stuff released, so I think we will call it SSI and I get to decide, 

right? 

Mr. BRESLAND. Well, here is a perfect example. This is a list of 

all of the—generally, a list of all of the documents that have been 

supplied to us; and every page on this list is marked SSI. 

Mr. WALDEN. Every page? 

Mr. BRESLAND. Every page. 

Mr. WALDEN. If you go to tab 23 and maybe 26 as well, Admiral, 

in e-mail traffic a Bayer CropScience outside lawyer is instructing 

OSHA about its obligations to protect sensitive information, and 

then he instructs OSHA how to do this. Review of SSI is the language of the citations should be liberal and OSHA should strike 

any reference to any piece of equipment, piping or document involving these two chemicals, chlorine and MIC. Tab 23. 

Admiral WATSON. Tab 23. 

Mr. WALDEN. Third page in, on tab 23. 

Admiral WATSON. What paragraph, sir? 

Mr. WALDEN. Second paragraph—third paragraph, I’m sorry. 

So I guess from your outside counsel, is that right, Mr. Buckner? 

Mr. BUCKNER. I haven’t seen the document. 

Admiral WATSON. That’s the first I have seen that document. 

Mr. STUPAK. Eric Kahn. 

Mr. BUCKNER. Yes, he is with our outside counsel. 

Mr. WALDEN. And so you haven’t seen this document? 

Mr. BUCKNER. No, sir, I have not. 

Mr. STUPAK. It’s dated February 23rd. The third paragraph: Accordingly, your review for SSI and the language of the citation 

should be liberal; and OSHA should strike references to any piece 

of equipment, piping or document involving those two chemicals. 

You should be particularly cautious about PHA and PNID references to those chemicals or their interconnectivity on the parts 

to the unit. 

Does this make sense, the company dictating what and how to 

label SSI to a Federal agency, Admiral? 

Admiral WATSON. Sir, I’m looking at it against the different categories upon which you label something SSI; and it really doesn’t 

fall into any of those categories, in my opinion. 

Mr. WALDEN. Do the instructions even make sense? I mean, 

where is the transportation security nexus concerning a piece of 

equipment or document? Is that what you’re saying, that there is 

no nexus from your quick evaluation? 

Admiral WATSON. My quick evaluation, there is no nexus. 

Mr. WALDEN. So I think this is the public policy question. Whether it is Bayer or somebody else, if you can have your attorney you 

didn’t know had done this tell an agency what to do and what not 

to do—and here, Admiral, you’re the one saying, I don’t even see 


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where this fits the 16 criteria. And poor Mr. Bresland over here is 

being shut down in his ability to use these data points. 

Mr. BRESLAND. Earlier in the testimony or earlier in your statement you mentioned Mr. Buckner’s written testimony in which I 

understood that he said the reason that they applied the SSI categorization was to slow us down in our investigation and avoid— 

hopefully avoid us having a public meeting. Am I correct in saying 

that? 

Mr. WALDEN. I don’t believe that was—— 

Mr. STUPAK. Business concern, negative response. It was more— 

not necessarily slow you down. And avoid discussion—— 

Mr. WALDEN. I believe it is in the submitted testimony but not 

what he read this morning. 

Mr. BRESLAND. Correct. 

Mr. WALDEN. Which is different. 

Mr. BRESLAND. I just don’t understand. 

Mr. WALDEN. Well, there is a motive issue here that strikes some 

of us as disconcerting, to say the least. 

Mr. BRESLAND. Yes. 

Mr. WALDEN. Am I correctly capturing that your submitted testimony is different from what you read today? 

Do we have the submitted here with the language? Where is it? 

Can we get that? 

Page 80 of your submitted—where you say, there were several 

reasons why the company sought confidentiality and SSI protection, including legitimate security concerns, the proper scope of 

CSB’s investigation and, we frankly admit, the desire to avoid making the controversial chemical MIC part of the public debate regarding the incident. 

Now, I wouldn’t think in any of those 16 criteria that avoiding 

public debate is on that list. 

Mr. BUCKNER. No, sir, it’s not. 

Mr. WALDEN. So do you appreciate what Mr. Bresland is getting 

at here? 

Mr. BUCKNER. I appreciate the dilemma that we have in understanding SSI in its context. 

As I stated in this particular statement that you reference, Congressman, we have two issues that we are dealing with. One is the 

obligation for us to acknowledge that we can’t supply confidential 

information that may in fact be contrary to Homeland Security— 

the Homeland Security Act. The other is this information that I 

was made aware of of an internal discussion we had relative to our 

efforts to keep this from becoming a public issue. That’s outside— 

in my way of thinking, that’s outside the scope of the SSI issue. 

Mr. WALDEN. Right. And I think ours, too, which is using SSI to 

avoid some other discussion by taking a liberal approach in how 

things get labeled. 

Mr. BUCKNER. Again, sir, we supplied that information to our 

outside counsel. We let them determine what that is. There was a 

period of time, if I could, please, of a span of 1 week, roughly—I 

mentioned this earlier—to where this internal discussion took 

place. Once we received the information from our outside counsel, 

we readily supplied all this information that the CSB had requested. 


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Mr. WALDEN. So this memo we have from February 23rd of this 

year, was that within that 1-week period? 

Mr. BUCKNER. No, sir, the 1 week took place previous to that. It 

was from January 15th up through the latter part of January 

itself. 

Mr. WALDEN. So how do you explain this memo then from Eric 

Kahn that is somewhere toward the end of February that appears 

to say use SSI liberally to OSHA? 

Mr. BUCKNER. I can’t explain that. 

Mr. WALDEN. Is Mr. Kahn one of your counsel? 

Mr. BUCKNER. Yes, he is. 

Mr. WALDEN. That reviews all of these things? 

Mr. BUCKNER. That’s correct. 

Mr. WALDEN. So I guess in your testimony you said there were 

some in company management who initially thought that the Maritime Transportation Security Act of 2002 could be used to provide 

information to CSB. 

Mr. BUCKNER. This was in that period of time in January, yes. 

Mr. WALDEN. Would you characterize Mr. Kahn’s memo as still 

of that opinion, that SSI can be used? 

Mr. BUCKNER. I would have to take a moment to review the 

memo and discuss it with counsel. I can’t make—this is the first 

time I have seen this document, and I can’t make a judgment on 

that. I’m sorry. 

Mr. WALDEN. I know my time has expired. 

I would encourage you to take a look at this. I didn’t realize that 

it would surprise you today to not know of that memo. 

Mr. STUPAK. Let me try to clear it up, if I may. 

Isn’t it true there is a January 13th, 2009, document—the Bayer 

personnel responsible for examining whether or not to seek confidentiality for the MIC documents identified only 1 specific reason 

do so and that was a concern that information contained in them 

would be used by CSB to recommend reduction or elimination of 

MIC storage at the plant by using inherently safer technologies. 

Mr. BUCKNER. That’s true. I have seen that document. 

Mr. STUPAK. So there is no evidence prior to January 13th of ’09 

that the company was discussing national security concerns over 

the release of documents? 

Mr. BUCKNER. Well, again, I would say, in the context of the requested information from the CSB, we felt like it was going beyond 

the scope of the accident itself and moving off into a direction of 

looking at all the other information surrounding MIC; and this individual made a speculation and a PowerPoint presentation. 

Mr. STUPAK. Right, it was a PowerPoint presentation, and there 

was no real concern prior to that time about national security. 

Mr. BUCKNER. Not before that time, because we didn’t really understand it. 

Mr. STUPAK. Mr. Burgess for questions? 

Mr. BURGESS. I don’t know that I have much more to add. But 

just for my own clarification, the night of the incident there would 

have been no reason for the plant operator who made the 9/11 call 

to have assumed that there was sensitive security information that 

he must be careful of what he disclosed or didn’t disclose to the responders; is that correct? 


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Mr. BUCKNER. That’s correct. 

Mr. BURGESS. So I guess we are better left to assume that the 

disconnects there are more because of a crisis and people have 

made mistakes in the process of doing their job? 

Mr. BUCKNER. That’s correct. 

Mr. BURGESS. You are going to fix that because the plant is important to the community. We have heard that testimony in the 

previous panel; and, obviously, we are putting people at risk in the 

plant, people who come in to help when you have a problem and 

the people next door at the college. So we’re going to reassure the 

community at large that that is happening and an ongoing part of 

your internal safety protocol. 

Mr. BUCKNER. You are absolutely correct. 

Mr. BURGESS. That that really has nothing to do with national 

security. 

Mr. BUCKNER. No, sir. 

Mr. CROSBY. If I could add to that, we have already changed our 

procedures and protocols; and we are in a position now where we’re 

going to carry out a drill, an emergency drill to really test those 

again to make sure we have done the right things. 

Mr. BURGESS. I’m just like Mr. Walden. I would suspect that 

there is some significant bridge building that needs to occur between the community and first responders, because that was a serious, serious—— 

Mr. CROSBY. A lot—— 

Mr. BURGESS. A lot of people at risk. And I think they justifiably 

feel they weren’t getting accurate, timely information that they 

needed to do their jobs and do it safely. 

And, Admiral Watson, if I could ask you—let’s just assume that 

there was significant sensitive security information; and had Bayer 

CropScience not followed the protocol, what penalty would they be 

facing today? What if they had released sensitive security information, opened the books? Mr. Bresland comes in and says, let me see 

what you’ve got. They open the books. Sensitive security information is sitting right out there on page 1, and they disclose it. What 

happens? 

Admiral WATSON. That would have been perfectly fine, sir. 

Mr. BURGESS. No whistles, no bells, no lights? 

Admiral WATSON. No, the CSB, like this committee, is a covered 

person. So if you have a need to know, you’re authorized by law 

to have access to SSI. 

Mr. BURGESS. OK. Well, let’s take it even one step further. What 

if it was the Daily Herald that came in and they opened the books 

up and there is SSI on the front page and it gets printed in the 

newspaper? 

Admiral WATSON. Then Bayer has an obligation to keep that information secure. 

Mr. BURGESS. What’s the worst-case scenario for them? 

Admiral WATSON. Well, the worst case would be a civil penalty. 

Mr. BURGESS. I—— 

Mr. BRESLAND. Can I make 1 point? 

Mr. BURGESS. Yes, please. 

Mr. BRESLAND. The issue for the Chemical Safety Board was not 

the receipt of the information. We were allowed to receive it. Our 


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issue was could we have a public meeting and explain what happened on that night of August 28th without disclosing what was alleged to be sensitive security information. Had we done that and 

had that been shown to be sensitive security information, I could 

have lost my job. There could have been penalties against me. Our 

investigators could have lost their jobs. That is the penalty that’s 

laid down in the regulations. That’s why we were concerned about 

this. 

Mr. BURGESS. Sure, I understand that. That would have been the 

case whether or not Bayer CropScience said it was sensitive security information or not, would it not? Had you disclosed information that put national security at risk—does Bayer’s interpretation 

of the information at this point, does that then—is that what’s 

guiding you on releasing the information or not releasing the information? 

Mr. BRESLAND. It appears that Bayer is the decisionmaker on 

what is SSI. They say it is SSI—— 

Mr. BURGESS. Admiral, is that the intent of this, protection for 

national security? 

Admiral WATSON. Yes. 

Mr. BURGESS. That Bayer would make that determination? 

Admiral WATSON. Bayer is supposed to know their duties and responsibilities under the regulation for SSI, which is pretty clear. 

There are 16 categories. They evaluate each piece of information 

against those categories of SSI. They label it SSI. And then it is 

perfectly normal for the CSB to assume if it is marked SSI that it 

is SSI. 

There is a process by which they can sort of appeal that classification, and that’s the case where it would go to the Coast Guard 

or Transportation Security Administration. 

Mr. BURGESS. All right. Is there any penalty for Bayer inappropriately labeling something SSI when it is not? Since they’re the 

arbiter, it is determinate as to whether or not—it is their obligation 

to—— 

Admiral WATSON. There is definitely a penalty for not labeling 

something SSI that should be SSI. I don’t know the answer to your 

question about mislabeling. 

Mr. BURGESS. Well, I’m just wondering if there is a scenario 

where Bayer might be prone to over interpret to stay out of trouble, 

stay out of congressional committees and writs and subpoenas and 

the sort of things that we do. 

I’m just asking the question because I honestly don’t know. It 

seems there is some definitional difficulties that we have that are 

leading to certainly making Mr. Bresland’s life miserable on what 

he can and can’t do and created a congressional committee to work 

well into the afternoon on this. But that is just purely conjecture 

on my part. It seems like this is something that could be tightened 

up considerably, but I’ll leave that up to the Coast Guard. 

Mr. BRESLAND. We are an independent agency, and we have the 

authority to go out and investigate chemical accidents. As much we 

love the Coast Guard, we don’t to be going to them every time we 

write a report and say please check this for SSI. Especially if the 

information is what I’d consider to be frivolous when it comes to 

a definition of SSI. 


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We have no interest in guards, guns, fences. There are experts 

at DHS and the Coast Guard who deal with that issue. We have 

absolutely nothing to do with that, and we have no interest in ever 

dealing with that. 

Mr. BURGESS. I guess that’s what I’m having difficulty in understanding, is how we came to such an impasse on this. Was it the 

inappropriate labeling of documents that say SSI by Bayer? Was 

Bayer doing that in an abundance of caution because they did not 

want to invoke civil penalties? I guess that’s where I’m having the 

disconnect. 

Mr. BRESLAND. Well, I think Mr. Walden made an interesting 

point in asking what was the motive here. I can’t read people’s 

minds. I don’t know what their motive was. 

Mr. BURGESS. You have obviously said it to counsel and you got 

solicited advice that you paid for and you took them for their word 

when they said you better not disclose this; is that correct? 

Mr. BUCKNER. That’s correct. 

Mr. BURGESS. I yield back the balance of my time. 

Mr. STUPAK. Thank you, Mr. Burgess. 

There is no civil penalty if you produce too much information. 

There is only a civil penalty under the Maritime Act if you don’t 

take sensitive information and label it. 

So you can bury a company with SSI information. For instance, 

2,000 documents they declared are SSI here that we feel have no 

national security inference. So that’s 2,000 documents. How many 

pages in each document? You’re probably talking thousands and 

thousands of pages the Coast Guard would have to go through to 

make a determination if there is national security interest. Maybe 

there should be a penalty for companies that use the Maritime Act 

to overwhelm us with paperwork that has nothing to do with national security. 

Mr. BURGESS. Well, exactly the point. I think perhaps—I don’t 

know whether it is our jurisdiction, but perhaps there could be 

some clarity for the company and all concerned. Because it doesn’t 

sound like there was an abundance of clarity in that situation. 

But, again, I yield back. 

Mr. STUPAK. Well, if we had a literal approach as opposed to a 

liberal approach as we saw in the memo maybe we wouldn’t have 

been on that issue so long. 

Let me ask you, Mr. Crosby, the committee staff has heard from 

several people, including Bayer employees, that the startup and 

shutdown is the most dangerous part of any chemical process; is 

that correct? 

Mr. CROSBY. Yes, it is. 

Mr. STUPAK. And I understand that this explosion occurred as we 

were restarting the methomyl unit, right? 

Mr. CROSBY. We had been in the process of restarting that unit 

over a number of days, yes. 

Mr. STUPAK. Well, if it is a particularly dangerous time, then 

isn’t that precisely when you’d want to make sure your MIC air 

monitors were working and the video cameras were recording? 

Mr. CROSBY. As I explained to you, at the time I wasn’t aware 

that the MIC monitors were not working at the time of the inciVerDate Mar 15 2010 23:37 Apr 12, 2012 Jkt 067825 PO 00000 Frm 00126 Fmt 6633 Sfmt 6633 E:\HR\OC\A825.XXX A825

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dent. I subsequently found that out. Those monitors are there 

to—— 

Mr. STUPAK. Some Bayer employee must know that, right? If it 

is the most dangerous part and you are restarting this unit and 

your safety devices, the air monitors and video cameras, if the process is not working, someone had to decide to restart the thing even 

though the safety—— 

Mr. CROSBY. We also have a lot of—a number of operators actually working that area as well. We have eyes and ears and levels 

of instrumentation—— 

Mr. STUPAK. Sounds like your eyes and ears weren’t on that day. 

Mr. CROSBY. Our eyes and ears—we have highly trained chemical operators who were starting that process. They were supported 

by a number of technical folks that were there. We have round-theclock technical cover, and they were working on the restart process. 

Mr. STUPAK. Unfortunately, the real eyes and ears went to check, 

because the monitors were indicating an increased temperature, 

and those folks were killed, right? 

Mr. BUCKNER. We did an internal investigation, a very thorough 

one; and out of that we identified several multiple factors that contributed to the accident itself. We’ve gone back and we dedicated 

the site, further trained the individuals to look at our standard operating procedures to ensure that this accident never happens 

again. 

Mr. STUPAK. Well—— 

Mr. BUCKNER. Including everything that you just acknowledged. 

Mr. STUPAK. You have had it since 2002. So you have had it 

about 7 years. And we have got about 3 or 4 incidents—in fact, the 

one in September of—8 months before this one, September of ’07. 

And we seem to have repeat complaints about lack of communication and things like this. And you bypassed the internal safety systems on this heater unit to get it to work. 

Mr. BUCKNER. I wasn’t aware of that, and I can assure you that 

it will not happen again. 

Mr. STUPAK. If we’re really concerned safety then—and I know 

you didn’t want MIC to be part of the public debate. That’s why 

you had the SSI invoked, to try to stop that public debate. But in 

light of what we have learned today of the recent accident of last 

August will you, on behalf of Bayer CropScience, commit today to 

implementing a safer technology that eliminates the MIC stockpiles at your plant? 

Mr. BUCKNER. I won’t commit to eliminating, endorsing or bringing in inherent safer technologies. I think what we have to do is 

we have to continue to assess new technologies as they become 

available. 

Mr. STUPAK. Why wouldn’t you eliminate it in light of the accident and near worst-case scenario we almost had? Is it a monetary 

thing, the cost of reduplication? I mean, the Dupont plant did it; 

and as I read from the earlier report from ’94, the Israelis used different chemicals to get the same results from their pesticides. Why 

are we the only company left that still has the storage and this 

MIC unit? Why don’t you just produce what you need that day and 

that’s all for that day? Why don’t you do that? 

Mr. BUCKNER. I’ll let Mr. Crosby answer that question. 


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Mr. CROSBY. We believe the process that we use to produce and 

store MIC at Institute is the safest process available for the products that we make. 

We have 4 different manufacturing plants. Some of those operate 

continuously, and some operate on a patch-wise process. If we were 

to introduce inherently safer technology, then we would essentially 

have to implement 4 independent small units, each operating in 

conjunction with each of those manufacturing plants. 

Mr. STUPAK. That would be today’s use. 

Mr. CROSBY. Yes. 

Mr. STUPAK. Wouldn’t that be safer than what you are doing 

now? 

Mr. CROSBY. We don’t believe so, the reason being those 4 plants 

would go through multiple startups and shutdowns and that itself 

imposes an inherent risk. We prefer and believe the safest way of 

making MIC and using that in our production is to make it a 1 

point of use, is to store a quantity of a maximum of 2 to 3 days 

of inventory. That’s all that we store—processes. 

Mr. STUPAK. You or Mr. Buckner can answer, if you don’t want 

to stop storing it like I think you should, then how about this? Will 

Bayer agree then to have a third party come in and conduct an 

independent analysis of your safety use of MIC? Will you commit 

to have someone else look at it other than just you? 

Mr. BUCKNER. I would have to take that back and have a discussion with our plant operators to ensure, one, what we have done 

in the past was thorough enough and, two, really challenge the fact 

whether there are inherent safer technologies out there before I 

commit 100 percent. 

Mr. STUPAK. Mr. Bresland, if they won’t stop storing it and they 

won’t have a third party look at it, I hope one of your recommendations is that Bayer should eliminate the storage of large quantities 

of MIC at this plant. And if they have to do 4 different systems, 

let them do 4 different systems. I hope that is one of your recommendations. I know that Mrs. Christensen and some of the others brought that up, and I would suggest that. 

Mr. BUCKNER. Chairman Stupak, we look forward to the opportunity to work with the CSB to understand what ideas that they 

might have for us as well as part of the process. 

Mr. STUPAK. That’s good. But I hope, since you are reluctant 

even to have a third-party independent review your safety procedures on how you are handling this MIC, especially when you put 

a bypass system in, the monitors aren’t working, the air quality 

and the cameras—it seems like all of the things that should have 

been in place, you bypassed them or turned them off during the 

most dangerous time, which is loading and unloading and starting 

up the process. 

Maybe we shouldn’t use it. Why should we just allow one company in this country to stockpile this much? I guess I find that 

ironic. We dodged a bullet here today. The next one we might not. 

Even the notification for the emergency response people, having 

been there and having done that myself—we alluded to traffic accidents. Even traffic accidents, when you have an 18-wheeler roll 

over, right on the truck it says what it is so we know when the 

firefighters approach it. Or a train. But in your case we never got 


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past the front door, so we did not know what it was. The people 

on the first panel said they didn’t know what was coming out— 

methomyl or whatever it was. 

We look forward to your investigation and your report on Thursday and look forward to continuing to work with you and get this 

matter resolved. 

I have no further questions. 

Mrs. Capito, I thank you again for staying with us all today. 

Mr. BURGESS. Mr. Chairman, we have two questions from counsel that are so involved and intricate that I am going to submit 

them in writing because I don’t understand them. 

Mr. STUPAK. Thank you. 

That concludes our questioning. I want to thank all of the witnesses for coming today and for your testimony. 

The committee rules provide that members may have 5 days to 

submit additional questions for the record. 

That concludes our hearing. The meeting of the subcommittee is 

adjourned. 

[Whereupon, at 3:05 p.m., the subcommittee was adjourned.] 

[Material submitted for inclusion in the record follows:] 


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