Nearly two years after a fire set off a deadly ammonium nitrate explosion at the West Fertilizer Co., Texas businesses selling the chemical aren’t subject to any new laws, and only a handful store it in fireproof buildings as experts recommend, state officials said.
Now the window of opportunity for state-level reform of ammonium nitrate safety standards may be closing.
As the biennial legislative session heads toward the June finish line, the two bills targeting ammonium nitrate storage are in legislative limbo.
One of the bills is written by Rep. Joe Pickett, D-El Paso, the former chairman of the House Committee on Public Safety and Homeland Security. The committee has held hourslong hearings about the regulatory failures that led to the April 17, 2013, disaster that killed 15 and wrecked a third of the town.
A yearlong investigation by the U.S. Chemical Safety Board found that the fire and explosion were preventable, and faulted federal, state and local regulatory agencies for “failing to identify a serious hazard and correct it.”
Pickett’s bill, which is named HB 417 after the date of the explosion, would give the State Fire Marshal’s Office rule-making authority over how to properly store and handle ammonium nitrate, possibly including fireproof storage.
“The fact that it’s already the end of March and it hasn’t been heard is kind of strange,” Pickett said this week.
He said he worries that by the next session, the public’s memory of the West disaster will evaporate along with the zeal for chemical safety legislation.
“If it doesn’t pass in this session, we won’t be addressing it until we have another explosion,” he said. “It won’t be a problem until it is.”
Pickett later said his bill and another written by state Rep. Kyle Kacal, R-College Station, will likely come before the House Environmental Regulation Committee next week. Kacal sits on the committee, and his district includes West.
A staff member with the committee said it’s likely the bills will be heard soon but could give no definite date.
Pickett and Kacal both are proposing to give the State Fire Marshal’s Office the power to inspect ammonium nitrate facilities to ensure compliance with the law and allow local fire departments to enter the facilities for planning purposes.
The bills also would put the Texas Commission on Environmental Quality in charge of handling the Tier II reports that disclose where hazardous chemicals are stored. The Department of State Health Services now has charge of those reports.
Kacal’s bill, HB 942, diverges from Pickett’s in that it doesn’t allow the state fire marshal to create rules for ammonium nitrate storage. Instead, it cites existing standards from the Office of the State Chemist requiring the fertilizer to be stored more than 30 feet from combustible material, such as seeds, fuel or batteries. The state chemist adopted that rule in the wake of the West disaster.
Kacal said that measure will go a long way in preventing ammonium nitrate explosions, and he said fertilizer companies have voluntarily made safety improvements since 2013.
“Because of the fact that the West explosion happened with so many fatalities, they’re taking every precaution to make sure it never happens again,” he said.
Kacal’s bill is mirrored in a Senate bill written by state Sen. Brian Birdwell, R-Granbury, who also represents West.
Pickett agreed that fertilizer dealers have stepped up safety since 2013, thanks in part to inspections by the state chemist and state fire marshal. But he said he wants to give the state fire marshal’s office authority to decide what the storage standards should be.
“I imagine that there would not need to be a whole lot of additional rule-making,” he said.
State Fire Marshal Chris Connealy declined to say what rules he would impose if Pickett’s bill passes. But he has voiced support for fireproof storage of ammonium nitrate.
“I’ve been very public in saying that under the best practices, ammonium nitrate should not be in a combustible building,” he said. “Certainly, Chris Connealy does not make that decision. We’ll see what the Legislature wants to do.”
Connealy and his staff have inspected every ammonium nitrate fertilizer handler in Texas since the West disaster, and he said the businesses have made substantial improvements. The number of ammonium nitrate dealers has decreased from 57 to 43 in that time, as some owners have chosen to avoid the paperwork and insurance premiums involved with ammonium nitrate.
Connealy said 80 to 90 percent of the remaining facilities are wood frame, like West Fertilizer Co.
At West, the building was engulfed in flames within minutes, and a portion of the roof fell onto the ammonium nitrate bin, allowing the fertilizer to melt and become sensitized under pressure, investigators have said.
Connealy said the lesson is simple: “We’ve got to keep fire away from ammonium nitrate.”
Pickett said agribusiness interests have opposed his bill because of fears that fertilizer dealers would have to upgrade their storage facilities.
“My thoughts are that the ag industry doesn’t want anyone asking any questions,” he said. “The way they’ve interacted with me, it seems they are really trying to water it down and say, ‘Don’t make us do anything.’
“There are two proposals out there. I would prefer the one the committee developed versus the one written by the industry,” he said, referring to Kacal’s bill.
Kacal acknowledged getting “a little bit” of input from industry groups, such as the Texas Ag Industries Association, in drafting the bill to make sure it wouldn’t create a hardship on agriculture.
‘Safety of people’
“The staff worked with all stakeholders,” he said. “We have an obligation to pass good legislation. . . . The safety of people is first and foremost.”
Donnie Dippel, president of Texas Ag Industries Association, said Pickett’s bill “leaves us hanging in limbo” by allowing the fire marshal’s office to make the rules later.
“We like the one Kacal has because it tells us what we need to do,” said Dippel, whose organization represents about 500 ag-related businesses.
Dippel said many dealers would be financially incapable of building new fireproof facilities for ammonium nitrate and would stop selling it, depriving farmers of a fertilizer option.
West Mayor Tommy Muska said the status quo of allowing ammonium nitrate to be stored in wooden bins, as it was at West Fertilizer Co., is not acceptable.
“We don’t want to overregulate, but the simple fact is that these things could be stored in a better way,” he said. “Maybe not sprinkled, but put in concrete bins. If that means putting it below ground, so be it.”
Muska said another option is mixing ammonium nitrate with other substances to make it less explosive.
Muska said he hopes to see some meaningful reform in this legislative session, possibly combining elements of the bills from Pickett and Kacal.
He agreed with Pickett that ammonium nitrate safety reform is in danger of losing its momentum two years after the West catastrophe.
“We’re third-page news now,” he said. “Unfortunately, our society forgets very quickly. . . . The next Legislature is going to forget that West even exists. It’s unfortunate that we can’t get anything moving on this.”
Meanwhile, little or no federal regulatory reform on ammonium nitrate has resulted so far from the West incident, said Daniel Horowitz, managing director of the U.S. Chemical Safety Board. The board for 12 years has recommended regulating ammonium nitrate and other reactive chemicals as “extremely hazardous.”
He said the industry seems to be making some progress regulating itself under the new ResponsibleAg program, which allows private inspections of fertilizer plants on a voluntary basis.
“In terms of regulations, there hasn’t been a change yet,” he said. “For any company, prudence would dictate keeping ammonium nitrate in a noncombustible environment. I think it’s clear the industry knows this can be stored in the safest possible way. The hazard can be completely eliminated using existing technology.”