Reader Comment – 04-28-13 – West Fertilizer and EPA General Duty Clause

It has been some time since Fred Millar has graced this blog with comments on a chemical safety issue, but today he returned with a comment on one of my recent posts about the West Fertilizer explosion. Fred’s comment was not about anything that I said in the particular post, rather it is a call to action to the US Environmental Protection Agency (EPA) to take action in the case under the General Duty Clause (GDC) of the Clean Air Act {42 USC 7412(r)}.

I suggest that readers take time to read and consider Fred’s cogent arguments favoring the application of GDC in this case. This certainly comes closer to the intent of the law than does using the GDC to mandate the application of inherently safer technology to chemical facility security requirements for high-risk chemical facilities. It comes closer, but it still doesn’t quite get there.

Extremely Hazardous Substance

Fred explains the GDC this way:

The Clean Air Act's General Duty Clause says "the owners and operators of stationary sources [facilities] (sic) producing, processing, handling or storing [any extremely hazardous substance] (sic) have a general duty to identify hazards which may result from releases [including fire, explosion, toxic gas cloud] (sic) using appropriate hazard assessment techniques, to design and maintain a safe facility taking such steps as are necessary to prevent releases, and to minimize the consequences of accidental releases which do occur." 

What the GDC actually says is:

The owners and operators of stationary sources producing, processing, handling or storing such substances have a general duty in the same manner and to the same extent as section 654 of title 29 to identify hazards which may result from such releases using appropriate hazard assessment techniques, to design and maintain a safe facility taking such steps as are necessary to prevent releases, and to minimize the consequences of accidental releases which do occur.

The phrase ‘such substances’ refers to the preceding sentence in the paragraph that reads:

It shall be the objective of the regulations and programs authorized under this subsection to prevent the accidental release and to minimize the consequences of any such release of any substance listed pursuant to paragraph (3) or any other extremely hazardous substance.

Fertilizer grade ammonium nitrate is not one of the listed chemicals nor is it generally recognized as an ‘extremely hazardous substance’ in any regulation or statute that I can find. In fact, DOT regulations classify fertilizer grade ammonium nitrate as an oxidizer (UN 2067, 5.1) in packing group III; the least hazardous level that is still regulated by the hazardous material regulations.

If it is such a low hazard, how did such a large explosion result? The specific answer to that in this instance is still under investigation by OSHA, the ATF and the Chemical Safety Board. I expect that the final report by the CSB will be enlightening and more than a little scary for other communities that contain large ammonium nitrate storage facilities. But, we do know that ammonium nitrate is hard to ignite but it will burn. If the burning ammonium nitrate is confined in some way (by a collapsing storage building for instance) there is a possibility that an explosion could result.

Releases

Another problem with Fred’s assessment revolves around the GDC’s use of the term ‘releases’. There is no specific definition of ‘releases’ in §7412, but the GDC does define ‘accidental releases’ as “an unanticipated emission of a regulated substance or other extremely hazardous substance into the ambient air from a stationary source” §7412(r)(2)(A). Thus it hardly seems possible that there was a ‘covered’ release of ammonium nitrate involved in the West Fertilizer explosion even if fertilizer grade ammonium nitrate were specifically covered under the GDC.

Who Could Have Covered West Fertilizer?

If the EPA’s GDC did not apply to the West Fertilizer Facility, does that mean that no agency was responsible for the regulation of the handling of ammonium nitrate at the facility? While there are no specific safety regulations pertaining to the handling of fertilizer grade ammonium nitrate, the Occupational Health and Safety Administration’s (OSHA) General Duty Clause (GDC; 29 USC §654) appears to be a much closer fit than does the EPA’s GDC. The OSHA GDC states that each employer “shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees” {§654(a)(1)}.

That phrases ‘recognized hazards’ and ‘are likely to cause’ will provide lots of room for lawyers to argue that the West Fertilizer situation does not really come under the coverage of the OSHA GDC.  There may be case law on the books that covers this type situation, but I suspect that any OSHA action under the GDC in this particular case will spend a number of years wending its way through the judicial system.

Who Should Have Covered the West Fertilizer Situation?

In my not so humble opinion it probably should have been OSHA that had regulations on the books that would have covered the safe storage of fertilizer grade ammonium nitrate. The catastrophic potential is clearly understood even if it is not even a remotely common occurrence. But ammonium nitrate fertilizer is an agricultural commodity. As such is falls under the protection of arguably the most powerful lobby in the United States (NO, not the NRA); the agriculture lobby.

Unfortunately neither OSHA nor the EPA is likely to take on the Ag Lobby to regulate the safe storage and handling of fertilizer grade ammonium nitrate. Unless we see a rash of such explosions across rural America, or someone determines that the cause was something other than an accident, I doubt that we will see any change in the way that ammonium nitrate fertilizer is stored in these small retail distribution centers.

Reader Comment 08-07-10 Influence

Fred Millar, a long time reader and well known acitivist, took objection to some of my comments on the political aspects of the most recent PIRG Report on chemical security issues. As always, Fred’s comments are worth reading in their entirety. The tone of Fred’s comments reflect his commitment to the causes that he supports, but are also indicative of the reasons that once again there will almost certainly be no comprehensive update of the CFATS authorization this year. Both sides of this debate have vociferously ignored the legitimate interests of the people on the other side of the ‘discussion’. This failure to engage in a real dialogue (again on both sides of the issue) makes it impossible to reach a reasonable compromise that both sides can live with. In the current situation, since the current authorization is certainly flawed and inadequate, the failure to engage in dialogue benefits the corporate interests that do not want to see that authorization expanded. Now PLEASE don’t think that I am blaming Fred for the current impasse. There are two sides to this lack of discussion and both sides bear a full share of the blame for making it next to impossible to engage in a constructive dialogue. Name calling, vilifying the opposition and exaggerating the goals of the other side do nothing to move a political dialogue forward. Legitimate Interests Chemical companies have a legitimate interest in influencing any legislation that will have an impact on their operations; influencing not dictating. Their management has a legal obligation to their owners (that includes a large number of their employees and members of the public who own stock through 401K plans and other investment vehicles) to ensure that the companies operate at a profit within the constraints of the current legal system. Corporations cannot vote, so they must effect their legitimate influence through legal campaign contributions and legal lobbying efforts. The activists of the ‘blue-green coalition’ have legitimate concerns about the safety of hazardous chemicals in commerce. They have seen too many examples of inept and/or shortcut safety and security practices that have resulted in releases of too many of these chemicals harming the public in both the short term and long term. They have seen too long a history of too many chemical facilities ignoring safety concerns to the detriment of their customers and local communities. As a result they feel that they cannot trust current chemical facility management to do the right thing when it comes to safety and security. These organizations cannot vote either; they effect their influence on the political process through publicizing their points of view and organizing individuals in political activism campaigns to influence legislators. Finally, safety and risk are not absolute values. There is no such thing as zero risk or absolute safety. There is a continuum of values that only tangentially approaches zero. Moving any product or process lower on the risk/safety scale requires the expenditure of energy and money. Incremental changes in risk or safety require higher and higher expenditures as one gets closer to zero. What is an acceptable risk or acceptable safety or a reasonable expenditure to achieve increased safety/risk can only be determined through a full frank discussion in the political process. Political Discussion We need to stop yelling at each other and start talking with each other. Otherwise nothing substantive is going to be accomplished. We will remain at the inadequate status quo until some terrorist organization finally realizes what a juicy target these enterprises actually are and figures out a way to exploit the weaknesses in security that remain because of our political failure to address the problems. The consequences for the public and the corporations will be unbearable.