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News Extra: West Fertilizer blast reveals Texas regulatory weakness

29 June 2013

On May 16, Alcohol, Tobacco and Firemans Special Agent in Charge Robert Champion delivered the findings of a joint investigation into the West Fertilizer Plant fire and explosion a month earlier, which killed 14, injured more than 200 and destroyed dozens of buildings, including a school and retirement home.

In the weeks that followed the incident, scores of investigators have been following up on leads. At least 60 have been on the site in Texas each day, conducted more than 400 interviews and spent $1 million trying to determine how the fire started and what caused the explosion, authorities said.

Investigators have said that 22 minutes after the initial report of a fire at the West facility, around 28 to 34 tonnes of ammonium nitrate stored inside a seed room at the plant exploded. An additional 120 tonnes stored elsewhere at the plant did not explode.

The number of possible causes has been narrowed down to three: an electrical fault, a battery-powered golf cart, or an act of sabotage. They ruled out a wide number of others, from fire on a railway wagon on site loaded with fertiliser to someone smoking.

The lack of a clear answer must be a continuing cause of worry, not only in West, but also in hundreds of other locations around Texas, including 700 fertiliser depots, where safety regulations are probably as lax as they were in West.

In the course of the investigation it was revealed that the West Fertilizer plant lacked most of the safety and security procedures and equipment which would be considered basic in most other US states, let alone other Western countries.

The plant, which contained 250 tonnes of ammonium nitrate, a violently combustible compound, and large amounts of toxic anhydrous ammonia, had no security fencing, inadequate alarm systems and no automatic sprinklers to douse a fire.

Lack of zoning restrictions meant it was situated next to housing and educational facilities – hundreds lost their homes in the explosion and total losses are valued at over $100m. But the company also lacked proper insurance, with coverage of only $1 million despite the risks associated with the plant.

Texas has always been proud of its free-market position. It is the only US state that does not require companies to contribute to workers’ compensation coverage and boasts the largest city in the country, Houston, with no zoning laws. It does not have a state fire code, and it prohibits smaller counties from having such codes. According to the New York Times, some Texas counties even cite the lack of local fire codes as a reason for companies to move there.

But Texas also has the nation’s highest number of workplace fatalities — more than 400 annually — for much of the past decade. Fires and explosions in the state’s more than 1,300 chemical and industrial plants have cost as much in property damage as those in all the other states combined for the five years ending in May 2012, again according to the NYT. Compared with Illinois, which has the nation’s second-largest number of high-risk sites, more than 950, but tighter fire and safety rules, Texas had more than three times the number of accidents, four times the number of injuries and deaths, and 300 times the property damage costs.

Homeland Security law required West Fertilizer to report its stores of ammonium nitrate, but the company failed to comply, and nobody at state or federal level was tasked with verifying the company’s compliance. 

A fundamental problem seems not just to have been inadequate regulation of the site, but also who was responsible for what little inspection and enforcement was carried out there. 

According to Propublica.org, at least seven different state and federal agencies can regulate Texas fertilizer plants like the one in West. These are: the Occupational Safety and Health Administration (OSHA), the Environmental Protection Agency (EPA), the Department of Homeland Security, the US Pipeline and Hazardous Materials Safety Administration (PHMSA), the Texas Department of State Health Services, the Texas Commission on Environmental Quality (TCEQ) and the Texas Feed and Fertilizer Control Service.

In 2012, the PHMSA fined West Fertilizer $5,250 for storing anhydrous ammonia in tanks that lacked the proper warning labels. The agency originally recommended a $10,000 penalty, but it was reduced after the company took corrective action.

In 2006, the EPA fined it $2,300 and told the owners to correct problems that included a failure to file a risk management program plan on time. The TCEQ also investigated a complaint about the lingering smell of ammonia around the plant the same year.

The EPA requires companies with large stores of ammonium nitrate to file annual inventory reports under the Emergency Planning Community Right-to-Know Act. Ammonium nitrate is not on the EPA’s list of ‘extremely hazardous chemicals’ that facilities must report as part of their emergency planning, despite its use in the bomb in Oklahoma City that killed 168 in 1995.

A 2011 initiative by the US excluded plants that distributed or sold ammonium nitrate from a list of targeted inspections. OSHA, which last inspected West Fertilizer in 1985, focused instead on manufacturers. Since the West plant had told the EPA there was no risk of fire or explosion, it was not a priority for OSHA.

In addition to the other agencies, the Chemical Safety Board (CSB) is also conducting an investigation into the West incident. This organisation conducts root-cause investigations of chemical accidents at fixed industrial facilities.

In a statement, the CSB said it would examine “the effectiveness of regulatory coverage” by OSHA, the EPA and the state of Texas. The CSB will study land use planning and zoning practices for “high-hazard facilities” that allowed vulnerable population centres like schools and residential areas near such plants. It will also review the emergency response to the fire, as well as preparedness planning in West, compared to good practices elsewhere.

CSB officials pointed out that other countries, such as Australia and the United Kingdom, have strict rules for storing ammonium nitrate. In the UK, for example, the workplace safety watchdog notes the material’s volatility and recommends it be stored in “dedicated, well-ventilated buildings that are constructed from materials that will not burn, such as concrete, bricks or steel.”

Those types of practices and improved codes could potentially become the basis of a CSB recommendation, officials said.

But Propublica warns against expecting any rapid conclusions from the CSB. It points out the organisation is still investigating a blast that killed seven workers at an oil refinery in Washington State three years ago, as well as the Deepwater Horizon oil rig explosion that killed 11 workers in 2010.

An editorial in the Houston Chronicle said the explosion that shattered the small Texas town was entirely preventable. “It happened because of lax oversight, inadequate regulations and minimal enforcement.” 

Nevertheless, early calls to tighten up on safety regulations may well run into the brick wall of the state’s traditional distrust of government interference in business. West Mayor Tommy Muska called for new regulations to protect populated areas in the future, but Governor Rick Perry said that greater regulation would have done nothing to prevent the West disaster.

Chuck DeVore, VP at lobbying group Texas Public Policy Foundation, insisted that the wrong response to the explosion would be for the state to hire more “battalions of government regulators who are deployed into industry and presume to know more about running the factory than the people who own the factory and work there every day.”


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