Deadly Fertilizer Plant Blast Was Criminal. What Does This Mean for Chemical EHS Rules?

A fertilizer plant explosion in Texas that killed 15 people and injured 300 in April 2013 prompted a series of environment, health and safety responses intended to protect people and the environment from future chemical disasters.

It turns out the blast was intentional.

Despite the numerous EHS violations at the West Fertilizer plant before the deadly ammonium nitrate fire and explosion, a Bureau of Alcohol, Tobacco, Firearms and Explosives investigation last week ruled the fire was a “criminal act” and is offering a $50,000 reward for information leading to the arrest of whomever is responsible. “All viable accidental and natural fire scenarios were hypothesized, tested, and eliminated,” according to an ATF press release.

Probably the most far-reaching response to the West, Texas disaster are the proposed changes to the EPA’s Risk Management Program, which affect facilities that use and distribute hazardous chemicals. The proposed changes would require some facilities to:

• Consider safer technologies and alternatives by including the assessment of Inherently Safer Technologies and Designs in the Process Hazard Assessment;
• Conduct third-party audits and root cause analysis to identify process safety improvements for accident prevention;
• Enhance emergency planning and preparedness requirements to help ensure coordination between facilities and local communities;
• Strength emergency response planning to help ensure emergency response capabilities are available to mitigate the effect of a chemical accident;
• Improve the ability of LEPCs (Local Emergency Planning Committees) and local emergency response officials to better prepare for emergencies both individually and with one another; and
• Improve access to information to help the public understand the risks at RMP facilities.

The public comment period on the proposed changes ended Friday. All of these proposed revisions will beef up chemical process safety, the EPA says. They will also cost companies more time and money. So now the question becomes: will the AFT report, which ruled out accidental and natural causes in the fertilizer plant explosion, have any impact on the final rule?

Judah Prero, an attorney in the environmental group at Sidley Austin LLP, says no. “I personally think it is unlikely that EPA will pull back anything due to the ATF’s findings,” he told Environmental Leader.

Prero says the EPA’s proposed changes will require more time and more money, with no quantifiable return on the investment as far as increased safety goes. He says some of the proposals, such as the third party audits and increased information sharing, actually add security vulnerabilities: bringing in outside auditors who do not necessarily have intimate familiarity with a facility may present a hazard to the inspectors and they might miss something, and sharing sensitive information could present a security risk. The amount of new information that must be generated and then shared also creates a huge potential legal vulnerability if an accident does occur as it provides potential.

“The one area where the ATF report might give EPA some pause is in the area of security and how some of the new information sharing provisions have a security impact,” Prero said.

And, Prero adds, regulatory changes are unlikely to stop with the Risk Management Program. Two other chemical facility safety programs — OSHA’s process safety management standard and the Department of Homeland Security’s Chemical Facility Antiterrorism Standards — are likely to undergo similar changes in the near future, he says. “This means a huge new compliance challenge, in terms of just having personnel be aware of the new requirements, and then with actual implementation and the associated costs.”

Industry should also expect to see an uptick in enforcement activities. New documentation and reporting requirements under the Risk Management Program will make the EPA’s job of finding violations easier, Prero says.

“What will be most important for facilities is for them to be vigilant with safety protocols and measures, and ensuring that all actions taken to ensure safety and to comply with the Risk Management Program are well documented,” he said. “The statistics indicate that since the Risk Management Program was first implemented, accidents have decreased. It is impossible to eliminate all accidents, and clearly most facilities are trying hard to ensure a safe and secure facility is maintained. If and when an accident does occur, the facility must be able to demonstrate that it indeed was an accident, and that proper protocol were in place and followed, the right equipment was used, and employees were appropriately trained. If a culture focused on safety and security is maintained, that will help with Risk Management Program compliance and help the facility should any enforcement issues arise.”

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