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Court expert in Bayer case has opposed tougher chemical rules

CHARLESTON, W.Va. -- A chemical engineer appointed to advise U.S. District Judge Joseph R. Goodwin about the safety of Bayer CropScience's controversial methyl isocyanate unit has consistently opposed new rules that would push companies to reduce the use and storage of large amounts of toxic materials.

Sam Mannan of Texas A&M University has, for nearly a decade, been a critic of efforts by environmental and labor groups to force chemical companies to study and implement "inherently safer technologies" for their manufacturing plants.

Mannan has testified before Congress on the issue several times, warning lawmakers against adopting such language. At Texas A&M, he directs the Mary Kay O'Connor Process Safety Center, which published a 2002 report that industry often cites in criticizing proposals for such regulations.

Last month, Mannan cautioned a House subcommittee that requiring "inherently safer technologies" might sound good, but is more complex than it sounds and could create more problems than it solves. Mannan said there is no widely accepted way of determining what "inherently safer" means, and questioned whether government regulators should try to come up with one.

"There are dangers associated with mandating a specific assessment model, or requiring an overly burdensome assessment regime," Mannan testified at a Feb. 11 hearing of a House homeland security subcommittee.

Goodwin appointed Mannan to assess the safety of Bayer's MIC unit and the "probabilistic risk of a catastrophic incident involving MIC" at the Bayer plant in Institute. A report is due to the court by Monday.

Mannan has not returned phone calls since Goodwin announced his appointment in a court order entered Feb. 23. It is not clear if Mannan's report on the Bayer plant will be made public when it is provided to the judge Monday, or not released until a court hearing scheduled for March 21.

The judge is considering a lawsuit filed by 16 Kanawha Valley residents who want to stop Bayer from resuming MIC production for 18 months before eliminating the chemical as part of a corporate restructuring. On Feb. 10, Goodwin issued a temporary restraining order against Bayer, to block MIC production until he could more thoroughly review the matter.

The case over restarting the MIC unit, which has been down for a reconfiguration project since August 2010, is the latest chapter in a 25-year effort by some Kanawha Valley residents to rid the community of the Institute plant's stockpile of MIC. Community activists have focused their concerns on MIC since December 1984, when a leak of the chemical killed thousands of people near a Union Carbide plant in Bhopal, India.

In his Feb. 23 order, Goodwin referred to Mannan as a "jointly submitted nominee" recommended for the expert witness role by both the residents and by Bayer. But records concerning that nomination have not been made a part of the court's public files, and part of a Feb. 18 hearing where the matter was discussed was held "off the record," without an official transcript. Lawyers for both sides have refused to comment on the process used to select Mannan.

Nationally, environmental and labor groups refer to reducing the use and storage of highly toxic chemicals such as MIC as adoption of "inherently safer technologies." Currently, the National Academy of Sciences is using the Bayer MIC unit as a case study to examine the concept.

In a 2002 report called "Challenges in Implementing Inherent Safety Principles in New and Existing Chemical Processes," Mannan said that inherently safer technologies "may require significant financial resources," without eliminating all risk of accidents.

"Everyday life is plagued with hazards that are intrinsic to our society," the report said. "Removing all hazards is not possible."

In recent years, the idea of forcing companies to consider such safer alternatives has become part of the discussion over ways to make chemical manufacturing plants less attractive targets for terrorists. Andrea Kidd Taylor, a former U.S. Chemical Safety Board member who is serving on the national academy's study team, has advocated requiring companies to analyze potentially safer technologies.

"Substituting more secure alternatives for hazardous substances, where technologically and economically feasible and comparable risks are not shifted is the best way to protect workers, their families, and their communities," Kidd Taylor told a June 2008 congressional hearing. "By switching to more secure technologies, the facilities are no longer potential terrorist targets."

Gerald Setley, a vice president for the International Chemical Workers Union Council, has spoken in favor of requiring companies to examine potentially safer technologies.

"The evaluation of safer technology is a vital step to significantly reduce the risk of catastrophic release of chemicals from intentional attacks or unintentional disasters," Setley said during a 2007 congressional hearing.

Rick Hind, legislative director for the Greenpeace toxics campaign, told that same hearing that such technologies also end up being better for business.

"The use of safer technologies offers a more competitive and stable business plan with much fewer regulations, potentially zero liability, sustainable profitability, better relationships with workers and neighboring communities and no threat of catastrophic attack or accident," Hind said. "Requiring safer technologies simply establishes a level playing field that will allow proven, cost-effective systems to grow profitably while providing communities safety and security."

Reach Ken Ward Jr. at kward@wvgazette.com or 304-348-1702.


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