Federal Report: Regulatory Confusion Contributed to Texas Chemical Disaster

An apartment complex and a destroyed car lie in ruins next to a fertilizer plant that exploded on April 18, 2013, in West, Texas. Two of the 14 people that died in the blast lived at the apartment complex, the U.S. Chemical Safety Board said this week.
National Journal
Douglas P. Guarino
April 24, 2014, 10:44 a.m.

Be­fore vi­ol­ently ex­plod­ing and killing 14 people last April, a Texas fer­til­izer plant first fell through mul­tiple reg­u­lat­ory loop­holes — some real and some likely ima­gined, a fed­er­al ad­vis­ory pan­el says.

In a re­lease of some pre­lim­in­ary find­ings from its in­vest­ig­a­tion in­to the in­cid­ent this week, the U.S. Chem­ic­al Safety Board noted that un­der fed­er­al law, com­pan­ies must re­port the use of chem­ic­als that the En­vir­on­ment­al Pro­tec­tion Agency con­siders to be “ex­tremely haz­ard­ous sub­stances.”

Am­moni­um ni­trate, the sub­stance be­lieved to have caused the deadly 2013 blast, along with some oth­er in­dus­tri­al ex­plo­sions in re­cent years, is not on the EPA list, however, the board noted. The board is an in­de­pend­ent fed­er­al body that in­vest­ig­ates chem­ic­al in­cid­ents and ad­vises reg­u­lat­ory agen­cies.

The West, Texas, fa­cil­ity did give no­tice of its use of am­moni­um ni­trate — un­der a sep­ar­ate re­quire­ment by the same fed­er­al Emer­gency Plan­ning and Com­munity Right-to-Know Act to re­port the use of those sub­stances deemed “haz­ard­ous chem­ic­als” by the Oc­cu­pa­tion­al Safety and Health Ad­min­is­tra­tion.

But state of­fi­cials, who are re­spons­ible for en­for­cing the law in Texas, de­term­ined — in­cor­rectly, ac­cord­ing to EPA guidelines — that the fa­cil­ity was ex­empt from the stat­ute’s re­quis­ite emer­gency-plan­ning re­quire­ments, the board says.

“This dis­con­nect between the fed­er­al and state agen­cies played a sig­ni­fic­ant role in the lack of emer­gency plan­ning at West Fer­til­izer, which left emer­gency re­spon­ders and res­id­ents un­pre­pared for what oc­curred on April 17,” the board says in a present­a­tion made in the Texas town on Tues­day. “The [board]’s in­vest­ig­a­tion will at­tempt to ad­dress this is­sue in our fi­nal re­port.”

The EPA risk man­age­ment pro­gram — a sep­ar­ate ini­ti­at­ive es­tab­lished un­der the Clean Air Act — de­mands that com­pan­ies us­ing cer­tain chem­ic­als take steps to pre­vent ac­ci­dents from hap­pen­ing in the first place. However, am­moni­um ni­trate is not covered un­der this pro­gram, either.

Fol­low­ing the West dis­aster, Sen­at­or Bar­bara Box­er (D-Cal­if.), who chairs the Sen­ate En­vir­on­ment and Pub­lic Works Com­mit­tee, urged the agency to ad­opt a 2002 Chem­ic­al Safety Board re­com­mend­a­tion to in­clude the sub­stance in the pro­gram, but it is un­clear how the agency is re­spond­ing to that re­quest.

Box­er spokes­wo­man Kate Gil­man on Wed­nes­day de­clined to say wheth­er the agency had com­plied with the sen­at­or’s de­mand for a re­sponse by Ju­ly 2013 re­gard­ing the status of the re­quest. EPA spokes­wo­man En­esta Jones did not reply to a re­quest for com­ment by press time.

The Chem­ic­al Safety Board is also rais­ing con­cerns that there are no fed­er­al re­quire­ments for vo­lun­teer fire de­part­ments — which it says ac­count for nearly 85 per­cent of all fire de­part­ments in the United States — to de­vel­op site-spe­cif­ic pre-in­cid­ent plans with the op­er­at­ors of chem­ic­al plants that handle haz­ard­ous ma­ter­i­als. Some fed­er­al agen­cies and private in­dustry groups have is­sued some vol­un­tary guidelines, but they are vague, ac­cord­ing to the board.

“Ef­fect­ive site-spe­cif­ic, pre-in­cid­ent plan­ning is needed to guide the fire­fight­ers on any ini­tial and sub­sequent ac­tions while on ground at a scene of a fire,” the Tues­day present­a­tion says.

The board’s find­ings come as two sep­ar­ate de­bates on how best to im­prove the safety and se­cur­ity of chem­ic­al fa­cil­it­ies are tak­ing place on Cap­it­ol Hill and with­in the Obama ad­min­is­tra­tion.

A House sub­com­mit­tee earli­er this month moved le­gis­la­tion meant to ex­tend the life of the Home­land Se­cur­ity De­part­ment’s chem­ic­al-se­cur­ity pro­gram that — for the first time in years — ap­pears to have the sup­port of both House com­mit­tees with jur­is­dic­tion over the is­sue.

Demo­crats and labor groups are rais­ing con­cerns, however, that the le­gis­la­tion does not do enough to ad­dress some of the per­ceived prob­lems with the de­part­ment’s Chem­ic­al Fa­cil­ity Anti-Ter­ror­ism Stand­ards. Among the com­plaints are that the stand­ards ex­empt wa­ter treat­ment plants and can­not re­quire a fa­cil­ity to take any spe­cif­ic meas­ures to im­prove safety and se­cur­ity. The West fa­cil­ity qual­i­fied for reg­u­la­tion un­der the stand­ards, but Home­land Se­cur­ity of­fi­cials were un­aware of its ex­ist­ence at the time it ex­ploded last year.

As a res­ult of the in­cid­ent, Pres­id­ent Obama is­sued an ex­ec­ut­ive or­der es­tab­lish­ing an in­ter­agency work­ing group that is con­sid­er­ing pos­sible changes to fed­er­al chem­ic­al safety and se­cur­ity rules. In­dustry of­fi­cials are rais­ing con­cerns that un­der the or­der, the En­vir­on­ment­al Pro­tec­tion Agency might re­quire com­pan­ies to as­sess wheth­er they can switch to the use of tech­no­logy that is “in­her­ently” safer.

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