Feb. 26, 2009
ANALYSIS: Post 9/11 Law Used by Institute Plant to Stop Revelation of MIC Dangers by US Chemical Safety Board at Public Forum
Similar Delay Tactics Stalled Litigation Over Terrorist Attacks
By Tony Rutherford
Huntingtonnews.net Reporter
Huntington, WV (HNN) – Attorneys for Bayer CrosScience have cited the Maritime Transportation Safety Act of 2002 to cancel a March 19 public forum on Kanawha County residents MIC (methyl isocyanate) concerns. Counsel for the plant which manufactures the same chemical that killed thousands in December 1984 at a Union Carbide Plant in Bhopal, India, have stated that for the U.S. Chemical Safety Board to discuss findings in a public meeting would violate claims of confidentiality.
Research by HNN disclosed that the Aviation and Transportation Security Act (ATSA) which like the Maritime Transportation Security Act of 2002 (MTSA) was passed in the aftermath of the September 11 terrorists attacks was a key component for litigation delays involving those surivivors who sued following the September 11, 2001 attacks. During In re September 11 Litigation, 236 F.R.D. 164, in the United States District Court for the Southern District of New York, apparently newly classified sensitive security information (SSI) regarding airline security in the words of Judge Hellerstein disputed SSI claims caused “the litigation [to] lurch past the three year mark with no discernable progress.”
Judge Hellerstein articulated at a Case Management Conference of November 2005 that “four years had passed since September 11, 2001, without visible progress in the lawsuits brought by the families of those who had lost their lives. I noted further that, without progress in this most basic part of the September 11 litigation, none of the other lawsuits could meaningfully progress. Framing the critical issue, namely the right of plaintiffs to pursue a course of action expressly acknowledged by Congress, I observed … What right do we have to indulge ourselves in the normal bureaucracy of discovery proceedings while people are waiting for a final decision. Do they have a right or do they not have a right to what they feel is their damage. That is the burning issue. That is the issue all of us are engaged in advancing.”
While the New York judge fashioned a remedy that allowed depositions and discovery to proceed, this involved SSI data/documents, not confidentiality issues. The judge ordered the depositions proceed using court personnel with security clearances and that the TSA have a minimal amount of time to examine the depositions and, if necessary, assert SSI concerns.
John Bresland, chairman of the U.S. Chemical Safety Board, told the Charleston Gazette that the March 19 meeting with People Concerned About MIC had been canceled while the Chemical Safety Board determines the relevancy of the confidentiality claim. “We decided to postpone and get the issue clarified,” Bresland told the paper. The chairman told the Gazette that Bayer could be concerned with negative media publicity. “They realized that a public meeting would have some negative consequences for Bayer,” Bresiand told the Gazette.
According to the report, the March meeting would have informed residents of the Safety Board’s findings following the August 2008 explosion at the Institute plant, which contains a 40,000 pound tank of MIC.
The New York judge called the TSA and the act a “strange and significant phenomenon” particularly since the delays in the litigation related to witness testimony that prior to 9/11 would not have been potentially subject to SSI classification and therefore redactible before becoming part of the court’s open records.
The lengthy delays in the 9/11 litigation over similar issues could well underscore a worry that the plant attorneys may “exploit” this similar law passed following the 9/11 attacks to stall or prevent detailed investigations into accidents at the plant.
Congress passed the MTSA “to ensure greater security for US seaports and other purposes.” In addition, the International Maritime Organization and similar international organizations are “developing a new maritime security system that contains the essential elements for enhancing global maritime security… it is in the best interests of the U.S. to implement new international instruments that establish such a system.”
Prior to that the act specifically discusses “security related and detection related equipment” lack at many U.S. Ports, which are defined as “international boundaries,” such as where cruise ships dock and where contraband and aliens may be smuggled.
An interpretation of the regulatory framework of the MTSA from a 2004 Southern District of New York federal court case stated:
Maritime Transportation Security Act of 2002, 19 U.S.C. §§ 1433, 1431a, requires all cargo shippers to provide cargo documents prior to the unloading of such cargo in a United States port. The statute empowered the Secretary of Agriculture to regulate the “time, manner, and form by which shippers shall transmit documents or information required under this subsection to the Customs Service.” 19 U.S.C. §§ 1431a(b)(4); 2401(6). Pursuant to this grant of authority, regulations were promulgated, which provide that CBP must receive the vessel's cargo declaration (former Customs Form 1302) from an incoming carrier twenty-four hours before the cargo arrives at port. General Maritime Management , LLC v. St. Shipping , WL 1320893
Other cases involving the act, from brief legal precedent research indicated cases such as involving a port of entry , the size of a vessel, or whether compliance delayed delivery of merchandise. HNN found one case in which TSA officers brought an action against the Department of Homeland Security for “failure to establish appropriate safeguards to ensure the security and confidentiality of personnel records.” (AFGE v. Hawley, 543 F.Supp. 2d 44 D.C. 2008).
To download the law in pdf form click: http://www.tsa.gov/assets/pdf/MTSA.pdf
According to published reports, the U.S. Coast Guard declined comment and attorneys for Bayer Cropscience, which has its corporate headquarters in Germany, have declined to comment on specific questions.)
(Editor’s Note: The writer has prior paralegal experience in preparing appellate briefs for attorneys as well as extensive classes in legal research and constitutional law.)
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ANALYSIS: Post 9/11 Law Used by Institute Plant to Stop Revelation of MIC Dangers by US Chemical Safety Board at Public Forum
Similar Delay Tactics Stalled Litigation Over Terrorist Attacks
By Tony Rutherford
Huntingtonnews.net Reporter
Huntington, WV (HNN) – Attorneys for Bayer CrosScience have cited the Maritime Transportation Safety Act of 2002 to cancel a March 19 public forum on Kanawha County residents MIC (methyl isocyanate) concerns. Counsel for the plant which manufactures the same chemical that killed thousands in December 1984 at a Union Carbide Plant in Bhopal, India, have stated that for the U.S. Chemical Safety Board to discuss findings in a public meeting would violate claims of confidentiality.
Research by HNN disclosed that the Aviation and Transportation Security Act (ATSA) which like the Maritime Transportation Security Act of 2002 (MTSA) was passed in the aftermath of the September 11 terrorists attacks was a key component for litigation delays involving those surivivors who sued following the September 11, 2001 attacks. During In re September 11 Litigation, 236 F.R.D. 164, in the United States District Court for the Southern District of New York, apparently newly classified sensitive security information (SSI) regarding airline security in the words of Judge Hellerstein disputed SSI claims caused “the litigation [to] lurch past the three year mark with no discernable progress.”
Judge Hellerstein articulated at a Case Management Conference of November 2005 that “four years had passed since September 11, 2001, without visible progress in the lawsuits brought by the families of those who had lost their lives. I noted further that, without progress in this most basic part of the September 11 litigation, none of the other lawsuits could meaningfully progress. Framing the critical issue, namely the right of plaintiffs to pursue a course of action expressly acknowledged by Congress, I observed … What right do we have to indulge ourselves in the normal bureaucracy of discovery proceedings while people are waiting for a final decision. Do they have a right or do they not have a right to what they feel is their damage. That is the burning issue. That is the issue all of us are engaged in advancing.”
While the New York judge fashioned a remedy that allowed depositions and discovery to proceed, this involved SSI data/documents, not confidentiality issues. The judge ordered the depositions proceed using court personnel with security clearances and that the TSA have a minimal amount of time to examine the depositions and, if necessary, assert SSI concerns.
John Bresland, chairman of the U.S. Chemical Safety Board, told the Charleston Gazette that the March 19 meeting with People Concerned About MIC had been canceled while the Chemical Safety Board determines the relevancy of the confidentiality claim. “We decided to postpone and get the issue clarified,” Bresland told the paper. The chairman told the Gazette that Bayer could be concerned with negative media publicity. “They realized that a public meeting would have some negative consequences for Bayer,” Bresiand told the Gazette.
According to the report, the March meeting would have informed residents of the Safety Board’s findings following the August 2008 explosion at the Institute plant, which contains a 40,000 pound tank of MIC.
The New York judge called the TSA and the act a “strange and significant phenomenon” particularly since the delays in the litigation related to witness testimony that prior to 9/11 would not have been potentially subject to SSI classification and therefore redactible before becoming part of the court’s open records.
The lengthy delays in the 9/11 litigation over similar issues could well underscore a worry that the plant attorneys may “exploit” this similar law passed following the 9/11 attacks to stall or prevent detailed investigations into accidents at the plant.
Congress passed the MTSA “to ensure greater security for US seaports and other purposes.” In addition, the International Maritime Organization and similar international organizations are “developing a new maritime security system that contains the essential elements for enhancing global maritime security… it is in the best interests of the U.S. to implement new international instruments that establish such a system.”
Prior to that the act specifically discusses “security related and detection related equipment” lack at many U.S. Ports, which are defined as “international boundaries,” such as where cruise ships dock and where contraband and aliens may be smuggled.
An interpretation of the regulatory framework of the MTSA from a 2004 Southern District of New York federal court case stated:
Maritime Transportation Security Act of 2002, 19 U.S.C. §§ 1433, 1431a, requires all cargo shippers to provide cargo documents prior to the unloading of such cargo in a United States port. The statute empowered the Secretary of Agriculture to regulate the “time, manner, and form by which shippers shall transmit documents or information required under this subsection to the Customs Service.” 19 U.S.C. §§ 1431a(b)(4); 2401(6). Pursuant to this grant of authority, regulations were promulgated, which provide that CBP must receive the vessel's cargo declaration (former Customs Form 1302) from an incoming carrier twenty-four hours before the cargo arrives at port. General Maritime Management , LLC v. St. Shipping , WL 1320893
Other cases involving the act, from brief legal precedent research indicated cases such as involving a port of entry , the size of a vessel, or whether compliance delayed delivery of merchandise. HNN found one case in which TSA officers brought an action against the Department of Homeland Security for “failure to establish appropriate safeguards to ensure the security and confidentiality of personnel records.” (AFGE v. Hawley, 543 F.Supp. 2d 44 D.C. 2008).
To download the law in pdf form click: http://www.tsa.gov/assets/pdf/MTSA.pdf
According to published reports, the U.S. Coast Guard declined comment and attorneys for Bayer Cropscience, which has its corporate headquarters in Germany, have declined to comment on specific questions.)
(Editor’s Note: The writer has prior paralegal experience in preparing appellate briefs for attorneys as well as extensive classes in legal research and constitutional law.)
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