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Texas Behind the Curve on Regulating Fertilizer Plants

Source: Austin American-Statesman, Texas

Posted on 21 May 2013 by Neilson

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Texas fertilizer explosionIf the West Fertilizer Co. plant had been in Illinois, state regulators there likely would have inspected it annually, making sure that its bins storing tons of ammonium nitrate were still in good shape and that the potentially explosive chemical wasn't spilling out. Though not charged with fire prevention, had they spotted a fire hazard, officials say, there is a good chance they would have alerted local authorities.

Had the plant been in California, a team of local officials may have inspected the plant, looking at everything from building codes to worker safety.

Many states simply have more eyes looking at such facilities than Texas, where no state agency regulates any aspect of ammonium nitrate safety, either to protect workers or the general public.

Texas is also one of only four states that lacks a statewide fire code and associated rules on storage of the chemical. Those rules are perhaps the strongest protection against unsafe handling of ammonium nitrate, which authorities have long known can blow up catastrophically under certain conditions.

About 30 tons of the material exploded during a fire at the West plant last month, killing 14. Though officials have given only limited details on how the chemical was stored, it appears that the facility, which lacked a sprinkler system, might have been in violation of at least some of the ammonium storage guidelines found in most fire codes.

But would officials in any other state have caught those deficiencies? Even in states that are the most aggressive when it comes to regulating both workplace safety and fire hazards, officials don't regularly target the safe storage of ammonium nitrate at fertilizer plants.

As in Texas, many states dispatch inspectors to fertilizer plants to make sure products are properly blended and labeled. Unlike Texas, many states -- including Oklahoma, Iowa, Missouri, Kansas and Nebraska -- enhance those consumer protections with annual environmental checks, as well as periodic safety inspections of tanks containing anhydrous ammonia, a gaseous fertilizer that can create a toxic cloud if released.

But those inspections don't generally encompass the safe storage and handling of ammonium nitrate fertilizer, a blind spot that extends well past Texas to other states and the federal government.

"I don't know that anyone had these small fertilizer plants on their radar screen," said Celeste Monforton, a lecturer at the George Washington University School of Public Health and Health Services and a former official at the Occupational Health and Safety Administration. "(Regulators) tend to be reactive."

Push for fire codes stymied

For the most part, two groups directly regulate ammonium nitrate storage: fire authorities and workplace health and safety agencies. (Several state and federal agencies regulate security at ammonium nitrate facilities, in an attempt to make sure the chemical isn't stolen for criminal or terrorist purposes.)

Texas doesn't just lack a statewide fire code: It prohibits smaller counties from adopting fire codes even if they want to. McLennan County is among those without a fire code, and the West Fertilizer plant, which straddles the city and county line, might have fallen into a regulatory limbo as a result.

Daniel Horowitz, managing director of the U.S. Chemical Safety Board, which is charged with investigating causes of industrial chemical accidents, told the American-Statesman that a fire code "would have been helpful. It would have offered some level of provision to prevent a fire around the ammonium nitrate."

Most fire codes around the country use the National Fire Protection Association's rules on ammonium nitrate storage, which include requiring sprinkler systems, fire-resistant walls and a ventilated roof.

A bill that would have allowed counties with 250,000 residents or less to adopt fire codes died during the current legislative session, despite being passed by the House County Affairs Committee the morning after the West blast.

In presenting his bill to the committee, state Rep. Walter Price, R-Amarillo, said the state prohibition on rural fire codes "leaves a huge number of (buildings) without clear fire safety standards or precautionary measures in place to prevent disasters."

Price would not comment on the bill's demise, but co-sponsor state Rep. Dan Flynn, R-Canton, said some legislators are generally opposed to giving rural counties more regulatory authority. Flynn said the West explosion might help the chances of such a bill in the next session: "It will give us some room to step out and do that."

Cities may adopt their own fire codes, and the city of West has some rules for hazards such as fireworks. But its city code does not incorporate one of the nationally recognized fire codes, which cover ammonium nitrate.

Though much of rural Texas lacks fire codes, that doesn't mean that there are no fire prevention guidelines. State law gives state and local officials the right to inspect buildings and use nationally recognized codes -- such as those covering ammonium nitrate storage -- to correct hazardous situations.

But without an adopted code, things can get squishy, say advocates of the bill. "The problem becomes you have to jump through 21 hoops if they challenge you," said Ronald Pray, the fire marshal of Victoria County, which is also not big enough to qualify for a fire code. "But if you have a fire code in place then there is no ambiguity."

It remains unclear if West Fertilizer was subject to the ammonium nitrate fire code provisions, or if any entity had ever told the company it was out of compliance. Officials have so far refused to clarify the issue.

A fire code, and the resulting fire marshal to enforce it, might have triggered more inspections in West, but not necessarily regular inspections, as some critics have contended.

Oklahoma, which does have a statewide fire code, doesn't perform regular fire inspections of fertilizer plants in rural areas, said Luke Tallant, operations chief for the Oklahoma Fire Marshal's office. "That's not a requirement in Oklahoma," he said. "I'm not aware of any fertilizer plants being inspected by our agency."

Many facilities, few inspectors

When it comes to workplace safety, Texas, like 24 other states, is regulated by the federal Occupational Health and Safety Administration. Another 21 states have set up their own workplace safety agencies, which by law must provide oversight "as effective or more effective" than the federal government. Both state and federal entities include fertilizer storage as one of hundreds of standards that inspectors can cite companies for failing to meet.

But ammonium nitrate violations are extremely rare: A review of OSHA's online inspection records shows not a single ammonium nitrate-related violation in a fertilizer blending plant like West Fertilizer over the last five years. Such plants don't manufacture fertilizer, but rather produce custom blends for farmers based on soil type and climate.

In practice, state programs don't perform much better than their federal counterpart: Worker death rates in states with their own workplace safety standards are just slightly lower than those regulated under the federal agency. Texas is often held up as the poster child for workplace dangers because it has the highest numbers of worker deaths -- 433 in 2011. But when the numbers are adjusted for population, its rate of deaths per 100,000 workers ranks 28th in the nation. North Dakota has the nation's highest death rate, which is more than three times higher than Texas.

The state programs, which proponents say have a better sense of local needs and are more flexible when it comes to regulating new industries or hazards, do have a slightly higher ratio of inspectors than OSHA states. But inspectors are woefully lacking everywhere: In state-run programs it would take inspectors an average of 87 years to inspect every workplace, according to numbers supplied by the AFL-CIO. In states with federally run programs the average is 135 years. In Texas, it would take 126 years for inspectors to reach every facility.

Those numbers help explain why the West facility hadn't been inspected since 1985. And though OSHA recently set up an enhanced program to more regularly inspect dangerous chemical facilities, officials didn't include small fertilizer blenders like West in the program.



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