Beirut and Ammonium Nitrate Regulations

 

The videos (see here for example) this week of the catastrophic explosion in Beirut, Lebanon have captured the attention of the world. While it is still way too early to say for certain what caused this explosion, the size of the blast and the sequence of events leading up to the explosion seem to confirm that an improperly stored mass of ammonium nitrate was involved in the incident. Videos show what appears to be a large fire in the vicinity of a warehouse where 2,750 tons of ammonium nitrate (AN) was apparently stored.

 

As we saw with the much smaller and less catastrophic (apologies to the folks who lived through it, but Beirut is a wholly different level of catastrophe in size and effect) explosion at the West Fertilizer facility in Texas, this explosion is raising calls for the regulation of the security of AN. While neither of the two incidents (West certainly and Beirut apparently) was caused by an attack on the storage facility, the only agency in the US government that currently regulates ammonium nitrate is DHS, as part of the Chemical Facility Anti-Terrorism Standards (CFATS) program. And there is a law on the books requiring DHS to regulate the security of the commercial sale and transfer of ammonium nitrate.

 

AN and CFATS

 

Straight ammonium nitrate fertilizer (without any added organic material such as diesel fuel, which makes it ANFO, an  explosive) is listed as a DHS chemical of interest (COI) in Appendix A to 6 CFR 27. Under the CFATS regulations any facility that possesses 2,000-lbs of AN must complete a Top Screen notification to DHS describing how much AN they have on hand and providing information about their facility that would allow CISA (through the Infrastructure Security Compliance Division - ISCD) to conduct an assessment of the facility’s risk of terrorist attack. If ISCD notifies the submitting facility that they are at high-risk of terrorist attack (and thus ‘covered’ under the CFATS program), the facility must complete a security vulnerability assessment and a site security plan (SSP). Once ISCD approves the SSP, the facility is subject to periodic security compliance inspections by CISA chemical security inspectors.

 

The closest thing to a ‘safety’ requirement in the CFATS program is the mandate for facilities to have “an active outreach program to the community and local law enforcement and emergency responders”. This is found in Metric 9.4 (pg 86) of the Program’s Risk Based Performance Standards (RBPS) Guidance manual. This requirement, if it had been in effect at West Fertilizer, would not have prevented the explosion, but it may have resulted in fire fighters pulling back and conducting local evacuations.

 

AN Security Program

 

Back in 2007 Congress enacted a requirement for DHS to formulate a new security program targeted at the commercial sale and transfer of ammonium nitrate, the Ammonium Nitrate Security Program (ANSP). DHS published their advanced notice of proposed rulemaking (ANPRM) for the ANSP in 2008. The notice of proposed rulemaking (NPRM) for the ANSP was finally published in 2011.

 

Last year, as part of a blog post about DHS meetings on explosive precursors, I discussed the cost/benefit problems with the ANSP. I noted:

 

“The big problem with the proposed ammonium nitrate security regulations is that they were going to involve a large number of people and would be very costly. DHS estimated that the ten-year cost for the program would be between “$364.2 million to $1.3 billion with a primary (mean) estimate of $814 million”. Balancing this against a cost of a Murrah Building attack estimated by DHS to be $1.35 billion. This would mean that the regulation cost would break even if the regulations prevented one Murrah scale attack every 14 years. Since there has not been such an attack in the 24 years since the Murrah attack, the cost of the program is not outweighed by the attack prevention. This calls into question whether or not ammonium nitrate regulation is cost effective, especially since ammonium nitrate no longer seems to be a favored precursor for terrorist explosive devices.”

 

Security and Safety of AN

 

So why the big push for ammonium nitrate security regulations after major AN accidents like Beirut and West Texas? Those accidents were related to unsafe storage of AN, not security issues. In fact, the Chemical Safety Board has open recommendations from their West Texas investigation for three Federal Agencies related to the safe storage of AN:

 

• FEMA (2013-02-I-TX-9 and 2013-02-I-TX-10),

• EPA (2013-02-I-TX-2), and

• OSHA (2013-02-I-TX-5)

 

None of these agencies have taken action on the CSB recommendations because of the lack of Congressional authorization. Congress is loath to act because of the strength of the agricultural lobby. The cost of adding OSHA and/or EPA safety rules to agricultural facilities would be quite high. Rep Thompson (D,MS) was able to push the ANSP legislation through only by attaching it to the 2007 DHS spending bill; no one was going to hold up that bill for a relatively minor program like ANSP.

 

So, if your only tool is a hammer, that is what you are going to use. Thompson, and many others, strongly believe that ammonium nitrate needs to be regulated to protect people and facilities. The only law available is the ANSP, so that is what he has to call for.

 

Moving Forward

 

Nothing is going to happen this year in response to Thompson’s letter to DHS about finalizing the ANSP or brining a recommendation to Congress on regulating explosive precursors. The ANSP as described by Congress is dead because of the cost-benefit problem. And no agency of the Trump Administration is going to propose new rules regulating explosive precursors no matter how much the folks on the ground think that regulation is necessary.

 

January 1^st brings a new year, a new Congress and perhaps a new Administration. If, as most folks believe, the Democrats come into control in Washington, things on the AN safety/security front are likely to change. Thompson will continue to push for the ANSP security program, perhaps he will be able to modify the mandate so that DHS can lower the cost of the program. Or maybe a new DHS will be able to tweak the program, fiddle with the cost estimates, or change the benefit calculation to make the ANSP cost effective and move it into practice.

 

In any case, the new year may actually bring changes….