[House Hearing, 111 Congress]
[From the U.S. Government Printing Office]


 
      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,      JOE BARTON, Texas
             Chairman                  Ranking Member
JOHN D. DINGELL, Michigan            RALPH M. HALL, Texas
  Chairman Emeritus                  FRED UPTON, Michigan
EDWARD J. MARKEY, Massachusetts      CLIFF STEARNS, Florida
RICK BOUCHER, Virginia               NATHAN DEAL, Georgia
FRANK PALLONE, Jr., New Jersey       ED WHITFIELD, Kentucky
BART GORDON, Tennessee               JOHN SHIMKUS, Illinois
BOBBY L. RUSH, Illinois              JOHN B. SHADEGG, Arizona
ANNA G. ESHOO, California            ROY BLUNT, Missouri
BART STUPAK, Michigan                STEVE BUYER, Indiana
ELIOT L. ENGEL, New York             GEORGE RADANOVICH, California
GENE GREEN, Texas                    JOSEPH R. PITTS, Pennsylvania
DIANA DeGETTE, Colorado              MARY BONO MACK, California
  Vice Chairman                      GREG WALDEN, Oregon
LOIS CAPPS, California               LEE TERRY, Nebraska
MIKE DOYLE, Pennsylvania             MIKE ROGERS, Michigan
JANE HARMAN, California              SUE WILKINS MYRICK, North Carolina
TOM ALLEN, Maine                     JOHN SULLIVAN, Oklahoma
JAN SCHAKOWSKY, Illinois             TIM MURPHY, Pennsylvania
HILDA L. SOLIS, California           MICHAEL C. BURGESS, Texas
CHARLES A. GONZALEZ, Texas           MARSHA BLACKBURN, Tennessee
JAY INSLEE, Washington               PHIL GINGREY, Georgia
TAMMY BALDWIN, Wisconsin             STEVE SCALISE, Louisiana
MIKE ROSS, Arkansas                  PARKER GRIFFITH, Alabama
ANTHONY D. WEINER, New York          ROBERT E. LATTA, Ohio              
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                 
                                     

                                  (ii)
              Subcommittee on Oversight and Investigations

                    BART STUPAK, Michigan, Chairman
BRUCE L. BRALEY, Iowa                GREG WALDEN, Oregon
  Vice Chairman                        Ranking Member
EDWARD J. MARKEY, Massachusetts      ED WHITFIELD, Kentucky
DIANA DeGETTE, Colorado              MIKE FERGUSON, New Jersey
MIKE DOYLE, Pennsylvania             TIM MURPHY, Pennsylvania
JAN SCHAKOWSKY, Illinois             MICHAEL C. BURGESS, Texas
MIKE ROSS, Arkansas
DONNA M. CHRISTENSEN, Virgin 
    Islands
PETER WELCH, Vermont
GENE GREEN, Texas
BETTY SUTTON, Ohio
JOHN D. DINGELL, Michigan (ex 
    officio)
  
                             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


      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.]

             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 
2\1/2\-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-in-place 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 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.
    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 escaping 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 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, Bayer'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.
    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 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 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 is because when the 8-by-10-foot 
steel vessel became a violent projectile 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.
    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.
    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.
    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.
    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.
    We were waiting on more up-to-date information from the 
incident commander, which came an hour later. The incident 
commander advised he did not think a shelter-in-place should be 
ordered for the surrounding areas from his position. Hindsight, 
if the same situation happened again, we would have ordered a 
shelter-in-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. 
Forty-five 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.
    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.
    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.
    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 Kanawha County, particularly Institute residents, have 
lost confidence 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.
    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 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 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?
    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.
    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.
    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.
    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.
    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.
    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 up-to-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.
    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.
    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.
    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.
    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 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 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 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 the heater, I guess, that you described in the 
bypassing of the safety 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.
    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 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 Coast Guard had confronted 
these issues in this context. As our experience 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 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?
    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 on-
site 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.
    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.
    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.
    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?
    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?
    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 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.
    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?
    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 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.
    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 
incident. 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-the-clock 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.
    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 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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