As federal and state investigators continued their search for a cause to the deadly explosion in the town of West, Local 2 Investigates obtained documents highlighting what some described as a "regulatory gumbo" when it comes to government oversight of facilities similar to the West Fertilizer Company.
Records show that none of the five state and federal agencies that visited the company at different times over the years raised any concerns the plant was handling large amounts of ammonium nitrate. This a potentially explosive chemical that is suspected of being the source of the April 17 explosion that killed more than a dozen people, injured nearly 200 people and leveled buildings for several blocks.
"This explosion, I think, surprised a lot of people," said Senator John Cornyn. "It is no surprise that ammonium nitrate is explosive under the right conditions."
The Texas Department of State Health Services requires companies to file an annual inventory of all chemicals being stored at a facility. The inventories are called Tier Two reports and are required so that fire departments and emergency management officials will know what they are dealing with when there is a problem at a particular facility.
Local 2 Investigates obtained seven years worth of these reports filed by West with the state. The reports show West never reported it was storing ammonium nitrate at the plant until 2012. That report showed it was certified by a plant official in February of 2013 and indicated West was storing 270 tons, or 540,000 pounds of ammonium nitrate in "Container Type: R." According to state codes of container types "R" is the designation for "other."
Department officials told Local 2 they have no record of an on-site audit being conducted of the Tier Two reports filed by West or any record of violations against the company.
"While we don’t have authority over the types, amounts or locations of chemicals, in some cases we audit the report and go on-site to ensure that what the facility reported is accurate," Department spokesperson Carrie Williams wrote in an email to Local 2. "Our priority, however, is on facilities that don’t report and getting them into compliance with the reporting requirement."
Yet, Local 2 uncovered a 2006 application for a permit filed with a different agency, the Texas Commission on Environmental Quality, in which West did list ammonium nitrate as one of several fertilizers it handled on the property.
West's application to the TCEQ, dated October 31 2006, listed it had a "maximum annual through put" of 2400 tons, or 4.8 million pounds of ammonium nitrate. The application was filed by West when officials with TCEQ discovered the company was operating without a permit after it's "grandfather" exemption lapsed. TCEQ officials reported finding this problem after receiving a citizen complaint about a strong smell of ammonia.
TCEQ records show at that time West applied for and was eventually granted two air permits; one for anhydrous ammonia tanks and one for the "material loading and storage of dry fertilizer materials."
The records provided to Local 2 by the TCEQ relating to the permitting process outlined conditions the company must follow to comply with state air emission standards. The TCEQ records provided to Local 2 did not address any potential fire or explosive hazards at the plant.
What is unclear from the documents filed with both the TCEQ and DSHS is whether West stopped handling ammonium nitrate for a period time and then resumed.
However, in 2006 West did not list ammonium nitrate on its Tier Two report, even though it did list the company handled this chemical on its permit application to the TCEQ that same year.
The Office of the Texas State Chemist does issue permits to companies handling ammonium nitrate. The head of the Office, Dr. Tim Herman, told Local 2 those permits are issued after a facility is checked to ensure it meets the requirements "relating to security and sale of ammonium nitrate as well as requirements that records of sale be maintained."
Herman said a check of whether facilities are meeting these requirements is conducted annually.
However, Herman said state law prohibits him from publicly disclosing whether West, or other similar facilities, passed this safety check and received a permit.
Herman added that his Office does not have the training nor regulatory oversight to pursue potential fire or other explosive safety concerns at a facility handling ammonium nitrate. Herman said his office is mainly tasked with checking that a facility is selling fertilizer with the proper amount of nutrients.
"We protect consumers and the marketplace from bad product," said Herman.
Another potential area of oversight could have been the Department of Homeland Security. Under the Chemical Facility Anti-Terrorism Standards DHS has the authority to monitor facilities storing "chemicals of interest."
According to federally published rules and regulations, if a facility is storing more than 400 pounds of ammonium nitrate then that company is required to file a "top screen" with DHS so the Department can decide whether the company should be included in the CFATS program.
According to DHS officials West had not completed a "top screen" and they are now checking into why that did not happen.
As Local 2 reported last week, the Environmental Protection Agency fined West $2,300 in 2006 for "failed to implement the risk management plan." A risk management plan filed by the company and dated June 30, 2011, made no mention of ammonium nitrate being on the property or that fire or explosions were a potential scenario at the plant.
The US Pipeline and Hazardous Materials Safety Administration also fined the company $10,100 after a 2011 inspection found some tanks did not have proper safety labels and for "failing to develop and adhere to a security plan" in relation to the transportation of anhydrous ammonia. Government records show the company paid a negotiated fine of $5,250 after taking corrective action.
"We really need to have the ability to pull together a complete picture," said University of Houston environmental law professor Tracy Hester.
Hester, who is also the director of the Environment, Energy and Natural Resource center, said the patchwork of government oversight regarding facilities like West creates a "regulatory gumbo." Hester said the problem may lie with all the different agencies not communicating information to help develop an all encompassing picture of potential hazards.
"The key thing is integration of that oversight," said Hester.
Houston attorney Anthony Buzbee said while he has been contacted by victims of the West explosion he has not yet decided whether he will file any lawsuits on their behalf. Buzbee, who has successfully handled many lawsuit involving large scale industrial accidents, said facilities as small as West rarely draw consistent federal or state scrutiny.
"It's not that regulators are out there like policemen, watching as things happen as the business is conducted, that's not how things are done in this state, or frankly, most states in the country," said Buzbee. "They only visit a site, for the most part, if there's been a complaint."
The Occupational Safety and Health Administration is tasked with regulating and overseeing workplace safety. A check of government records showed OSHA had not visited the West facility since 1985.
Cornyn said all of the questions lingering over the company need to be answered.
"What you've described is something I certainly hope that the state and local and federal investigatory bodies will look into and get to the bottom of," said Cornyn.