Fertilizer Plant Fire Raises Memories of Tragedy and Regulatory Failures

On April 17, 2013, a fire broke out at the West Fertilizer company in West, Texas. Emergency responders rushed toward the facility which contained 40 to 60 tons of fertilizer grade ammonium nitrate (AN). Twenty minutes later a massive explosion ripped through the building killing 12 responders and three others, injuring 252 and damaging or destroying 500 buildings. A 22-unit apartment complex and a 145-bed nursing home across the street were destroyed. Two of the victims who died lived at the apartment complex and another lived at the nursing home.

Earlier this week, a fire broke out at the Winston Weaver Company Fertilizer plant in Winston-Salem, NC. That plant is estimated to store 600 tons of ammonium nitrate, at least ten times the amount of AN that devastated the city of West almost 9 years ago.  The fire in Winston-Salem led to wide-spread evacuations, but luckily has not detonated. According to Winston-Salem fire chief William “Trey” Mayo, “At the beginning of this incident there was enough ammonium nitrate on hand for this to be one of the worst explosions in U.S. history.”

Not the kind of facility you really want to be living near.

“At the beginning of this incident there was enough ammonium nitrate on hand for this to be one of the worst explosions in U.S. history.” Winston-Salem fire chief William “Tre” Mayo

If stored unsafely and contaminated with other materials, ammonium nitrate fertilizer can cause a huge explosion. In addition to the West Explosion, a massive ammonium nitrate explosion in 2020 destroyed major parts of the City of Beirut, Lebanon, and killed hundreds. AN was also used in the terrorist bombing of  Alfred P. Murrah Federal Building in Oklahoma City on April 19, 1995.

The Winston-Salem fire — even if it ends as just a fire — raises important and uncomfortable questions about what kind of progress this country has made since the West explosion and what we can still do to eliminate the risk to workers and the surrounding communities of chemical plants.

The Unfinished Legacy of West

West was different than most previous chemical plant incidents. Instead of “just” killing workers, the West explosion killed unsuspecting neighbors, uninformed emergency responders and destroyed much of the surrounding community. Luckily, the fire and explosion occurred at night where a nearby school and playground were empty.

Executive Order

As a result of the West explosion, along with several other smaller chemical plant incidents in the months before, President Obama issued Executive Order 13650, “Improving Chemical Facility Safety and Security”  which called for additional measures to be taken by government agencies to improve chemical facility safety and security. Among the specifics in the Executive Order were directives to OSHA, EPA and the Department of Homeland Security to coordinate their efforts and to modernize regulations that protect workers and the public from explosions and uncontrolled chemical releases. OSHA’s Process Safety Management standard (PSM), and EPA’s Risk Management Plan rule (RMP) were both almost 20 years old an in dire need of revising. OSHA had a 40-year old explosives standard that included some AN precautions, but AN wasn’t even covered in PSM or RMP.

All three agencies began immediately to modernize their regulations and close many of the loopholes that kept federal agencies from ensuring the safety of chemical plants. EPA succeeded in modernizing its RMP rule in the waning days of the Obama administration. EPA’s new rule significantly improved communication between facilities and emergency responders, clarified information that emergency responders need to safely respond to incidents, required root cause analyses of chemical plant incidents and near misses, and required chemical facilities to consider “inherently safer” chemicals and production processes.

OSHA began work on modernizing its Process Safety Management Standard, but didn’t get beyond the early stages of the massive rulemaking before the end of the Obama administration.

The Executive Order also called on OSHA to fix its flawed PSM “retail exemption.” After the West Fertilizer explosion, OSHA discovered that the facility was not covered by OSHA’s PSM standard and had therefore not been inspected since the mid-1980s. The reason was the little known “retail exemption” that categorized the fertilizer facility as a retail establishment, exempted from the PSM standard, despite the thousands of pounds of ammonium nitrate and anhydrous ammonia it contained. OSHA set out to fix the flawed definition of a retail establishment, but the Agricultural Retailers Association successfully lobbied Congress to stop OSHA from regulating such establishments, and the Court later said that OSHA had to go through a full lengthy rulemaking to make the change.

In October, 2013, OSHA determined that several standards, including its Explosives and Blasting Agents standard were violated and fined the company $118,000. In January 2016, the US Chemical Safety and Hazard Investigation Board issued a report blaming the explosion on faulty storage of AN and the lack of a fire detection system. The CSB also concluded that OSHA and EPA regulations failed to ensure AN safety. The Board made numerous recommendations including updating EPA and OSHA regulations regarding safe storage of AN and other reactive chemicals, and improving the emergency response process.

Negative Corpus

In May 2016, the Bureau of Alcohol, Tobacco and Firearms (BATF) 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.”  (For all of you fire detectives out there, the reward has never been collected.  You know what to do.)

Unfortunately, ATF did not actually have any evidence of arson, but rather used the discredited method of “negative corpus” to reach that conclusion.  Negative corpus basically means that if you can’t figure out the cause of a fire, it must have been intentional. The National Fire Protection Association (NFPA) has declared “negative corpus” to be a violation of scientific method. (If you’re interested, I have written about this problem here, here and here.)

Trump: Chemical Industry Takes Over EPA

Just over a month into the Trump administration, 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.

And a few months after Trump took office, EPA Administrator Scott Pruitt made the chemical industry’s wishes come true, announcing that EPA would delay implementation of the updated Risk Management Program.

And a few months later, Pruitt made the chemical industry’s wishes come true, announcing that EPA would delay implementation of the updated RMP rule until February 19, 2019. The delay was needed “to allow the agency to conduct a reconsideration proceeding and to consider other issues that may benefit from additional comment.”  Part of the reason that the Agency allegedly needed “additional comment” was the highly dubious conclusion by the ATF that the fire was caused intentionally. In other words, Pruitt’s pretext for delaying the rule was largely based on on the completely unsubstantiated BATF allegation that the fire at West Fertilizer was caused by arson.

Pruitt’s reasoning was that if the fire was caused by arson, we didn’t need to update chemical plant safety regulations. We didn’t need better communication between responders and chemical plants; we didn’t need better storage requirements; we didn’t need any root-cause analyses or safer chemicals. We just need higher fences and more guard dogs.

But as I wrote at the time, how the fire actually started didn’t really 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 small 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.

The Obama rule was eventually withdrawn to be replaced by a weak shell more consistent with chemical industry interests. And they were delighted.

Meanwhile, Back in Winston-Salem

Five days after the fire broke out, most Winston-Salem residents are finally returning to their homes.  Firefighters are returning to the plant so that the investigation into the causes of the fire can begin.  The Winston-Salem Fire Department, along with BATF and the North Carolina State Bureau of Investigation will conduct an investigation into the causes of the fire, as well as to what extent Winston Weaver has updated the 82 year old building to meet modern safety standards.  Fire officials say the the plant was inspected recently and passed the inspection, but it was inspected under the fire code in effect in 1939 when the plant was built.

Fire officials say the the plant was inspected recently and passed the inspection, but it was inspected under the fire code in effect in 1939 when the plant was built.

Assistant Fire Marshal Rick McIntyre, who is leading the investigation

Jason Shepherd, NC Building Code Council member explained that depending on what is found at Weaver, fire codes could change and that would go through the Code Council. But, according to Shepherd,

as for why not all buildings are required to have all the same codes he said, “You don’t take a code in 2022 that is very comprehensive and has 100 years of input and it’s not fair to impose on existing buildings that same code, that’s the ideology behind that.”

I imagine that the workers in the facility and families living in the vicinity might dispute Shepherd’s definition of “fair.”

What is to be done?

It’s a sad fact of life in the United States that major change only comes as a result of disasters. And if you don’t act fast, the opportunity disappears.

Today, as the plant still smolders — almost nine years after the West explosions and one year after the end of the Trump administration — it’s like we’re back at the starting line again:  EPA, working to restore (or improve?) its withdrawn Risk Management Plan regulation and held listening sessions last summer to for “considering improvements to the RMP rule, so EPA can better address the impacts of climate change on facility safety and protect communities from chemical accidents, especially vulnerable and overburdened communities living near RMP facilities.”

The agency is now expected to propose additional changes in August 2022 with a final rule a year later.

Meanwhile, over at OSHA, the retail exemption has still not been revised, and AN is still not covered by OSHA’s PSM standard.  OSHA is attempting to get the PSM standard moving again, although the agency’s significant lack of resources and focus on COVID-19 is severely handicapping an already glacial regulatory process.

Community activists and local officials, noting that “More than 12,000 facilities nationwide, including refineries, water treatment plants, paper mills, and agricultural operations, use or store highly toxic or dangerous chemicals,” are calling on EPA to improve on the 2017 rule by requiring implementation of inherently safer technologies — e.g. replacing highly hazardous chemicals with less hazardous chemicals.  There also calling for better leak detection, incident investigation, emergency response, communication with affected communities and better preparation for natural disasters that may affect chemical plants, and improved inclusion of workers and their representatives in disaster prevention planning and response.

The 850,000 member United Steelworkers of America, which represents 30,000 workers in the petroleum and chemical industry and hundreds of thousands of men and women whose workplaces use and store large quantities of industrial chemicals, sent comments to EPA calling for more meaningful inclusion of workers and their representatives in the Risk Management Program.  The USW is also calling for root cause analyses as part of an incident investigation of a catastrophic release, requiring independent third-party audits after an accidental release or finding of significant non-compliance, Safer Technology and Alternatives Analysis to implement safer technologies, enhanced emergency response coordination requirements, and updating its list of regulated substances in coordination with other regulatory agencies.

We are in an election year and one way to ensure that the political winds blow in the direction of progress is to ensure that communities in the shadow of chemical facilities make chemical plant safety an issue that can’t be ignored.

Millions of people live and work in the shadow of high-risk chemical plants that store and use highly hazardous chemicals. An Earth Justice review noted that EPA estimates that about 177 million Americans live close enough to a hazardous chemical facility —and one in three schoolchildren attend school near enough—to be potentially affected by a chemical disaster. 4.6 million children at nearly 10,000 schools across the country are within a mile of a facility that reports to the EPA.

It’s not a question of if the next major chemical plant disaster, but when.  There is much to be done to prevent major chemical releases and explosions, and none of it is getting easier. We may have dodged a bullet in Winston-Salem.  They were lucky. But if the federal government doesn’t act rapidly, and states don’t update their fire codes, the next disaster could make the West Texas tragedy look like a minor incident.  As more chemical plants are built across the country, and fewer are covered by current fire codes, as climate change adds to the threat of natural disasters that endanger chemical facilities, federal rulemaking at the EPA and OSHA are the only hope of preventing incidents that could cause untold hundreds or thousands of workers’ and residents’ lives.

Government is full of dedicated, hard-working, well-intentioned experts, but without the political will — in Congress and in the White House — to make change, nothing good will happen. As long as the chemical industry is successful in moderating or killing improvements, progress will be slow, unsteady or non-existent.

We are currently in an election year and one way to ensure that the political winds blow in the direction of progress is to ensure that communities in the shadow of chemical facilities make chemical plant safety an issue that can’t be ignored.