• Michael Kennedy Esq.

West Texas Explosion - A Criminal Act...What are the Repercussions?

The Alcohol Tobacco and Firearms (ATF) determined that on April 17, 2013 the explosion at the West Fertilizer facility was a result of a "criminal act" and “ruled out all accidental and natural causes". 15 people were killed, more than 160 were injured and more than 150 buildings were damaged. The act incited a laundry list of agencies to work together to address the problem, despite the “undetermined” cause of the explosion.President Obama issued Executive Order 13650: Improving Chemical Safety and Security is an attempt to address the lack of coordination within federal agencies and reduce the safety and security risks to prevent future explosions. Despite the effort, the scope of the EO and the mechanisms to correct these issues seemed to be more focused on producing more regulations than doing more with what is currently out there.

One twist to this tale is the coordination among investigators, or perhaps the lack thereof. The US Chemical Safety Board (CSB) and ATF had a full-fledged show down during the initial days of the investigation both competing for witness testimony yet coming up with different conclusions. Further, without a clear cause, the CSB advocated corrective actions to the Occupation Safety and Health Administration (OSHA) to change the Process Safety Management (PSM) of Highly Hazardous Chemical Standard (1910.119), all documented in their final report along with their educational videos. This comes years before the ATF and Crime Stoppers announced a $52,000 reward for information about the intentional fire.

Bound by political pressure, litigation ensued when OSHA eradicated a longstanding retailer exemption to the PSM requirements, in which suppliers argued would cost them up to $25,000 per facility. Then Congress in budget report language directed OSHA to conduct a rulemaking on this matter, in which OSHA politely disregarded this suggestion citing that there was ample time for the public to weigh in during its Request for Information on PSM. (Note, oral arguments before the US District Court of Appeals are scheduled for this week and the court has decided it can rule on the merits of the matter without the benefit of a hearing.)

Lastly the U.S. Environmental Protection Agency (EPA) proposed changes to the Risk Management Program (RMP) Rule to amend the Accidental Release Prevention Requirements of RMP under the Clean Air Act, Section 112(r)(7). Comments closed last week, but questions still remain as to why EPA would reform the RMP program and not update Emergency Planning and Community Right-to-Know Act (EPCRA), which passed Congress during the Reagan administration. (a separate discussion)

Even after three years, the incident in West Texas is still unfolding. Although intentions were good after the incident, politics and litigation will still play a role in the next chapter of this saga. Will it produce the fruits in which it was intended? Will the intentional nature of this incident change the benefits relied upon by the agencies in their rulemaking?

#OSHA #WestTexas #AmmoniumNitrate #Fertilizer #Chemical #EPA #1910109 #ProcessSafetyManagement


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