Industry Uses Unproven Arson Claim to Repeal Chemical Safety Rule

Chemical industry representatives are using unproven allegations that a criminal act caused the catastrophic 2013 West Texas explosion to try to kill an important chemical safety rule.

Millions of people live and work in the shadow of high-risk chemical plants that store and use highly hazardous chemicals.  The House of Representatives is expected to vote this week on a Congressional Review Action resolution to repeal of the Environmental Protection Agency’s recently announced Risk Management Program (RMP) update. EPA’s RMP regulation, originally issued in 1992, is designed to protect communities surrounding chemical facilities from harmful explosions and chemical releases.  EPA had updated these protections in response to President Barack Obama’s 2013 Executive Order on “Improving Chemical Facility Safety and Security” following the catastrophic explosion at West Fertilizer that killed 15 people and wiped out part of the city of West, Texas.

The vote this week follows EPA Administrator Scott Pruitt’s announcement on March 13 that he had decided to grant an industry petition to extend the effective date of the new rule for 90 days.

One of the main arguments of the industry petition (and an argument that will undoubtedly be heard on the House floor) is that,instead of the West explosion being “a terrible accident caused by carelessness and improperly managed hazardous materials,” the fire that led to the West explosion was actually “an intentional criminal act of arson,” this based on a Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) announcement last year. The industry petition stated that “EPA’s proposed regulatory revisions were based on the mistaken understanding that West, Texas, incident was a preventable accident.”

Background

First the facts:

• On April 17, 2013, 40 to 60 tons of ammonium nitrate fertilizer detonated at the West Fertilizer Company facility in West, Texas. Fifteen people were killed — 12 of whom were emergency response workers who were responding to a fire at the facility. More than 160 people from the surrounding community were injured, and more than 150 buildings were damaged or destroyed, including a nursing home, two schools and an apartment building near the plant.
• In August, 2013, responding to the West explosion as well as several other chemical facility incidents that had killed numerous workers and threatened surrounding communities, President Obama issued Executive Order 13650 on “Improving Chemical Facility Safety and Security.” The Executive Order called for a number of actions from EPA, OSHA, the Department of Homeland Security, BATF and others, including closer coordination between the agencies, working with stakeholders to identify and improve best practices, and to modernize policies, regulations, and standards. Note that the goal of the Executive Order was not just intended to prevent an ammonium nitrate incident from happening again, but targeted chemical facility safety and security overall.
• Investigations were conducted by OSHA, the US Chemical Safety Board (CSB) and the Bureau of Alcohol, Tobacco, Firearms and Explosives (BATF). In October, 2013, OSHA determined that several standards, including its Explosives and Blasting Agents standard were violated and fined the company $118,000.
• In response to the Executive Order’s call for modernizing regulations and standards, OSHA issued a Request For Information in December 2013, beginning the process of modernizing its almost 25 year old Process Safety Management (PSM) Standard, and EPA began rulemaking for modernizing its Risk Management Program (RMP) regulation. Both the PSM and RMP standards were mandated by the Clean Air Act Amendments of 1990 in response to the catastrophic 1984 Bhopal, India, incident resulting in more than 2,000 deaths; the October 1989 Phillips Petroleum Company, Pasadena, TX, incident resulting in 23 deaths and 132 injuries; the July 1990 BASF, Cincinnati, OH, incident resulting in 2 deaths, and the May 1991 IMC, Sterlington, LA, incident resulting in 8 deaths and 128 injuries.
• In May 2016, the ATF shocked the country by announcing that they had determined that the fire that led to the explosion was a criminal act and that they believed that someone had deliberately set the fertilizer plant on fire. The agency also offered “a reward of up to $50,000 for information leading to the arrest of the person or persons responsible for the fire and subsequent explosion”  According to a CNN Report, “After conducting 400 interviews and lab work on evidence, investigators determined someone started the fire on purpose, officials from the Bureau of Alcohol, Tobacco, Firearms and Explosives said.”
• On January 13, 2017, EPA published its final Risk Management Program regulation, including new requirements on Third Party Audits and Inherently Safer Processes
• On Feb. 28, 2017, the RMP Coalition (the American Chemistry Council, the American Forest and Paper Association, the American Fuel and Petrochemical Manufacturers, the American Petroleum Institute, the Chamber of Commerce of the United States of America, the National Association of Manufacturers, and the Utility Air Regulatory Group) petitioned new EPA Administrator Scott Pruitt to stay the EPA rule.
• On March 13, 2017, Pruitt announced that EPA had granted the industry’s petition and was staying the rule for 90 days, stating “As an agency, we need to be responsive to concerns raised by stakeholders regarding regulations so facility owners and operators know what is expected of them.”

What is the truth?

1. There is no evidence that the West explosion or the fire that led to the explosion was an intentional act of arson.
2. Even if the fire was started intentionally, the explosion itself was caused by improper management of hazardous materials.
3. Update, modernization and strict enforcement of EPA’s Risk Management Program and OSHA’s Process Safety Management Standard are needed to improve the safety of this country’s chemical facilities.

There is no evidence that the West explosion or the fire that led to the explosion was an intentional Act of arson.

The only “evidence” presented that the fire at the West fertilizer facility was a criminal act came from a short press conference that the ATF held in Texas on May 11, 2016.  You can watch the ATF Press Conference below.  Note that they never actually say they had evidence that the fire was started intentionally. After three years and $2 million investigating the incident, all they say is that they were not able to find an ignition source and, after ruling out all other possible ignition sources, a criminal act was the only thing they had left.

The ATF did not argue at the press conference that they had evidence, but could not release it because release of evidence may impede the case. Instead, in response to reporters’ questions (1:40) about evidence, the ATF only responds that “We have eliminated all reasonable accidental and natural causes and that includes smoking.” And “Well, we came to the conclusion after we ruled out all reasonable accidental and and natural causes. And, after the extensive testing we conducted.”

ATF never issued a written report, and never held briefing for any government agencies or anyone else.  They even refused a request from the White House for a briefing. (Something I never even knew was possible.)

Even if the fire was started intentionally, the catastrophic explosion was caused by improper management of hazardous materials.

Identifying the initiator of  a fire is notoriously difficult  after an explosion, mainly because there are often lots of possibilities, and the evidence for what actually ignited a fire or explosion is often destroyed.  There are numerous Chemical Safety Board investigations where the actual ignition sources is never identified.   In fact, chemical incident experts have a saying: “Man provides the fuel; God provides the ignition source.”

But ultimately the initiator of the fire is irrelevant to determining why the explosion occurred or how to prevent future catastrophes. To understand why, a little process safety background is needed here. Process safety management is about understanding the causes of potentially catastrophic incidents and systematically controlling them to prevent disaster. 

Ammonium nitrate (AN) doesn’t just blow up by itself, or even if exposed to a small fire.  The best theory for the West explosion was a combination of high heat from a large, out-of-control fire that had liquefied the AN which was contaminated with nearby seeds, soot from the fire or other contaminants.  Fires may be difficult to prevent completely, but storage of AN in metal bins, or concrete (non-combustible)​  bins and buildings​, away from contaminants (like seeds),  along with ​ with sprinklers to control a fire, minimizes the  chance that a fire​​ (however ignited) in the vicinity of AN will turn into an explosion. The Chemical Safety Board, for example, found that if the ammonium nitrate at West Fertilizer had been stored in metal, instead of wooden bins, and if contaminants like nearby seeds had not been stored nearby, the fire would likely have burned itself out, without causing the ammonium nitrate to detonate. 

If ammonium nitrate is properly stored and handled, you don’t have to worry as much about fires and  ignition sources. If the mice chew through an electrical wire, if the Boy Scouts hold an illegal cookout, or if a rogue ISIS wannabe tosses in a Molotov cocktail, the facility may start to burn, but no catastrophic explosion will occur because the AN is stored properly and measures are in place to control the fire.

And that’s exactly why​ what initiated the fire doesn’t matter. Fires happen. You want to prevent them and control as many ignition sources as possible, but the main concern is ensuring that ignition of a fire doesn’t lead to a catastrophic explosion, and that’s where good ​design practices and safety procedures come in.  If ammonium nitrate is properly stored and handled, you don’t have to worry as much about fires and  ignition sources. If the mice chew through an electrical wire, if the Boy Scouts hold an illegal cookout, or if a rogue ISIS wannabe tosses in a Molotov cocktail, the facility may start to burn, but no catastrophic explosion will occur because the AN is stored properly and measures are in place to control the fire.

Proper storage and management of flammable and explosive materials —  process safety management —  is the difference between a fire that makes the front page of the West, Texas News, and a catastrophic explosion that makes the front page of every newspaper in the world.

Modernization and strict enforcement of EPA’s Risk Management Program and OSHA’s Process Safety Management Standard are needed to improve the safety of this country’s chemical facilities.

President Obama’s Executive Order 13650 was not just targeted at preventing another ammonium nitrate explosion similar to what happened at West. The Executive Order was titled “Improving Chemical Facility Safety and Security.” It was a response to West, as well as other catastrophic chemical plant incidents that had happened around that time period. It was also prompted by the growing realization that improving chemical facility oversight in this country was desperately needed and way overdue.  Both the PSM and RMP standards were almost 25 years old, coordination between the agencies that handle chemical plant safety and security (EPA, OSHA, Homeland Security, ATF and others) needed to be updated and  improved. Plant owners (especially smaller facilities) were confused about overlapping regulatory requirements, and the communities surrounding the plants felt left out of any discussion about their safety.

Industry opposition to the EPA’s updated RMP regulation has little to do with how the fire may have started at the West Fertilizer facility, and more to do with the traditional reasons that industry opposes health, safety and environmental protections: they don’t want to pay for the safeguards that are needed and they don’t want any stinkin’ government agencies telling them how to do their business.

Industry opposition to the EPA’s updated RMP regulation has little to do with how the fire may have started at the West Fertilizer facility, and more to do with the traditional reasons that industry opposes health, safety and environmental protections: they don’t want to pay for the safeguards that are needed and they don’t want any stinkin’ government agencies telling them how to do their business.  The main items in the new EPA regulation that the industry opposes is a requirement that  facilities study if it is feasible to shift to inherently safer systems or processes and conduct third-party audits of plants.  The requirement to consider inherently safety technologies was much weaker than many in the environmental community wanted. Environmental organizations had been lobbying EPA to require chemical companies to implement inherently safer technologies if feasible, not just study them.

The RMP Coalition’s petition stated that “Knowing that the incident was intentional would could have impacted the scope of the Executive Order, certainly have changed the comments EPA received, and likely would have caused EPA to construct its proposed and final rules differently had it known of these circumstances at the time of the proposed rulemaking. ”

That statement is completely false. The EPA’s RMP rule was not directly focused on preventing another West, but on chemical facility safety overall, as the Executive Order intended.

And one more item.  The origin of the fire and the causes of the explosion at the West fertilizer plant are irrelevant to the fate of the RMP regulation.  What the RMP Coalition — and possibly Scott Pruitt –seem to have overlooked is that ammonium nitrate is not even regulated under RMP.

Conclusion

Millions of people live and work in the shadow of high-risk chemical plants that store and use highly hazardous chemicals. A 2012 Congressional Research Service report found that more than 2,500 chemical facilities estimate that their worst-case scenarios could affect between 10,000 and 1 million people. 4.6 million children at nearly 10,000 schools across the country are within a mile of a facility that reports to the EPA. The West explosion and other recent chemical industry disasters have highlighted the fact that there are significant gaps in our chemical facility oversight processes. Near misses that warn of narrowly avoided disasters happen with frightening frequency — potential disasters that could make the West Texas tragedy look like a minor incident.

Modernization of safety oversight of US chemical facilities is needed and President Obama’s Executive Order moved the federal government further down the road to making these facilities safe for the workers who operate the plants, and the people who live near the plants.  How the fire in the West facility started is completely irrelevant to this goal.

The RMP coalition knows it. EPA leadership knows it. And we hope that our Congressmen and women will understand it as well.