The Charleston Gazette ran a story on September 5 about the Bayer plant explosion, which made national news last week. Reportedly, when plant employees called 911, they refused to give the dispatchers details. Upon numerous requests for information, they repeatedly responded that “I’m only allowed to tell you that we have an emergency in the plant.”

The end result was that one worker was killed and a second seriously injured. Citizens living in the area were told to take shelter because of potentially deadly fumes. Furthermore, Bayer refused to report the incident to the National Response Center, which is the clearinghouse for reporting hazardous-materials accidents to the government, until more than two hours after the explosion.

The Charleston Gazette reported on a citizen’s phone call to the NRC:

At 11:15 p.m., Institute native Catherine Davis called the NRC after hearing about the explosion from her mother, who still lives in Institute.

“This happens all the time,” said Davis, who now lives in Arizona. “They never tell anyone.

“We’d go outside, and some crazy flames would be shooting up or we’d smell something and we’d call the plant and they’d say that nothing happened,” Davis said. “But then, three hours later, you hear the emergency broadcast.”

Note that this phone call to the NRC, from a lady who actually lives in Arizona, took place well before Bayer reported the explosion to the NRC. Oh, by the way. Bayer was required by federal law to “immediately” notify the NRC.

Why the spin? Were they buying time to cover their tracks? To destroy the evidence? Or were they just being arrogant and nonchalant?

What possible justification is there for not releasing full information to first-responders and state authorities. What justification is there for not alerting local residents as to what kind of chemicals are raining over their homes? What justification is there that the first report to federal authorities comes from a woman living in Arizona? It seems that the reason many of these plants are in West Virginia has to do with the seeming expendability of it’s citizenry, and the indifference of its state government to do anything about it. There needs to be accountability behind the corporate veil. Accidents happen, but if you cause a dangerous accident, you need to be open and honest with the community and with all authorities, rather than just protecting the corporation.

On September 6, the Gazette ran another story reporting that the EPA is going to investigate Bayer’s reporting delay. It noted the following about the 1986 federal law mandating immediate disclosure:

Under the 1986 law, chemical companies are required to “immediately” notify state, local and federal authorities of releases of certain amounts of certain toxic materials.

The notification must include the chemical name, an estimate of the quantity released and the time and duration of the release. Companies must also include information on any known or anticipated health risks associated with the release and advice regarding medical attention for people who are exposed. Also, companies are required to provide information on the proper precautions, such as evacuation or sheltering in place, and the name and telephone number of a contact person.

Violations can draw civil penalties of up to $25,000 a day, and willful and knowing violations can draw criminal penalties of up to $25,000 a day and up to two years in jail.

Cases like this make me proud to be an attorney who represents “breathers,” actual living, breathing human beings, rather than legal fictions that can act recklessly and irresponsibly all-the-while avoiding any personal responsibility on any one individual for making those decisions.

Maybe West Virginia should unleash it’s army of plaintiff’s attorneys onto Bayer…

– John H. Bryan, West Virginia Attorney.