A former high-ranking official with the Occupational Safety and Health Administration is questioning methods used by federal investigators who determined the fire that caused the 2013 West Fertilizer Co. plant explosion was intentionally set.
Jordan Barab, an OSHA administrator during the Obama administration, said recently in his workplace safety blog that findings by Bureau of Alcohol, Tobacco, Firearms and Explosives investigators that relied on a process of elimination are faulty.
“The process that BATF used — eliminating every other ignition source and then concluding that arson must be the only cause — is called ‘negative corpus,’ ” Barab said. “And the world’s leading authority on fire investigation, the National Fire Protection Association, has declared ‘negative corpus’ to be a violation of scientific method.”
The ATF made its arson announcement last year at a press conference in West. Immediately, defendants in the massive West explosion litigation filed for trial delays, describing the news as a bombshell that could change the scope of the lawsuits.
The defendants, particularly CF Industries and El Dorado Chemical, manufacturers of the ammonium nitrate fertilizer that exploded, filed suit against the ATF, requesting the federal agency’s investigative file in the case. The ATF balked, and a federal judge ordered the disclosure of some documents, which the ATF turned over to the CFI and El Dorado defendants last year.
Dallas attorney Carlos Balido, who represents CF Industries and who has been a spokesmen for the West litigation defendants, did not return phone messages Tuesday.
Last month, the Environmental Protection Agency announced it was further delaying implementation of updated risk management protection for chemical plants for almost two years, which many safety advocates blame on the ATF announcement, Barab said in his blog.
The EPA updated these protections after former President Obama’s executive order on “improving chemical facility safety and security” in the wake of the West explosion.
Barab charges that the EPA is “bowing to the wishes of its chemical industry overlords” by announcing the delays.
“Or to simplify: What the chemical industry wants, the chemical industry gets,” Barab wrote.
Barab said the ATF findings are in error and cites the National Fire Protection Association in his blog.
“The negative corpus process is not consistent with the scientific method, is inappropriate, and should not be used because it generates untestable hypotheses, and many result in incorrect determinations of the ignition source and first fuel ignited,” Barab wrote, quoting the NFPA.
“Why should a violation of the scientific method stand in the way of eliminating protections for people living in the shadow of a chemical plant?” Barab asked on his blog.
Nicole Strong, ATF spokeswoman, defended the agency’s investigation in a statement Tuesday. She said the agency’s $50,000 reward for the person who started the fire remains unclaimed, adding that she could not comment further because of the ongoing criminal investigation.
“During the three-year investigation of the fire and explosion in West, Texas, the Texas State Fire Marshal’s Office and Bureau of Alcohol, Tobacco, Firearms and Explosives established a clearly defined area of origin by means of a comprehensive scene investigation, witness statements, photographs, videos, nearly complete reconstruction of the structure and extensive forensic testing conducted at the ATF Fire Research Laboratory,” Strong said.
“Using the National Fire Protection Association’s Guide for Fire and Explosion Investigation, all reasonable accidental and natural fire scenarios were hypothesized, considered, tested and eliminated as being fire causes. The only hypothesis that could not be eliminated was that the fire was incendiary. This means it was intentionally set. This conclusion was confirmed by extensive testing,” she said.
Waco attorney Steve Harrison, lead plaintiffs’ attorney in the West cases, said that while he also takes issue with the ATF findings, the lawsuits are not about what started the fire, they are about why the fertilizer exploded.
“While it might be nice to know how the fire started, this is not a fire case, it is a product liability case, and what we know for certain is that a fire occurred and that fire was a foreseeable event,” Harrison said. “No one died from the fire. The ammonium nitrate fertilizer exploded, it killed 15 people, injured hundreds more and leveled a good part of the community.”
Harrison said, “I can’t really add a whole lot to that,” when asked about Barab’s and the NFPA’s opinion of ATF methods.
“With respect to the announcement, the ATF made it clear they are not making a comment on what exploded or why,” Harrison said. “I appreciated that. As far as the effects on the announcement on the lawsuits, the manufacturers of the ammonium nitrate fertilizer that exploded used that announcement to significantly delay the trial of these cases. But other than delay, there has been zero effect on these cases.”
Several trial dates have been canceled after the parties, who continue to negotiate settlements, reached agreements on the eve of past trial dates. The city of West and West Rest Haven, the nursing home destroyed in the blast, represent some of the largest claims in the litigation and those cases remain pending.
West Mayor Tommy Muska also finds fault with the ATF ruling, adding he felt snubbed after ATF officials didn’t notify him about the press conference that was held in West about the fire and explosion that decimated his hometown.
“That is not the way you investigate something. I would agree with (Barab), yes,” Muska said. “You rule out this and rule out that, and it is automatically something else? That doesn’t make any sense to anybody. They are grasping at straws for some reason, and we haven’t seen hide nor hair of the ATF since that big press conference.”
Frank Patterson, Waco-McLennan County emergency management coordinator, said he thinks safety improvements and public awareness of chemical storage has improved in the years since the West explosion.
“I think as an industry, we are safer. I think as far as firefighting procedures, we are safer,” Patterson said. “I believe as far as chemical storage, in the state of Texas we have started the process of being safer. The fear is the further you get away from the incident, the foggier your memory is. So it is a matter of keeping the due diligence and keeping it in on the forefront and recognize there are potential challenges and issues out there and keeping that mindset.”