How Will Texas Explosion Impact Chemical Security Laws?

WASHINGTON -- The fertilizer plant explosion that leveled homes and killed at least 14 people last week in West, Texas, demonstrates the need for tougher chemical security laws, some Democrats say. Whether such proposals will have any legs on Capitol Hill remains uncertain.

Industry officials are already taking exception to calls for heightened regulations, and not all Democrats are convinced such rules are necessarily the appropriate solution. Many key lawmakers are holding out for more information while the cause of the blast remains under investigation.

Proponents of stricter rules have noted that the Homeland Security Department was not regulating the West Fertilizer site under its Chemical Facility Antiterrorism Standards program even though the facility held sufficient quantities of dangerous chemicals to trigger coverage.

A risk management plan filed with the Environmental Protection Agency says the facility possessed up to 54,000 pounds of toxic anhydrous ammonia -- more than five times the CFATS threshold of 10,000 pounds. In addition, according to Reuters, the plant last year reported to the Texas State Health Services Department that it possessed 270 tons of explosive ammonium nitrate – more than 1,000 times the CFATS reporting threshold of 400 pounds.

“The fact that DHS was not regulating this plant calls into question the fundamentals of the program,” said Mississippi Representative Bennie Thompson, the top Democrat on the House Homeland Security Committee. Thompson indicated current law may need to be strengthened but has not discussed specifics.

Senator Frank Lautenberg (D-N.J.) suggested the April 17 disaster shows Congress needs to pass a pair of bills he introduced that would give the federal government the authority to require that high-risk facilities switch to safer technologies or materials when possible. Current law does not give DHS officials that power.

Whether Congress will act on those recommendations remains to be seen. Lautenberg has introduced his legislation repeatedly in recent years, but it has seen little action in the Senate Homeland Security and Environment committees. Any legislative bids by Thompson would most likely have to be approved by Republicans on the powerful House Energy and Commerce Committee, who have historically opposed tougher chemical security rules and who have delayed passing legislation to permanently authorize the CFATs program for years.

House Energy and Commerce Committee Republicans “want to fully obtain the facts of the situation first,” according to spokeswoman Charlotte Baker.

A spokeswoman for the Senate Homeland Security Committee, to which one of Lautenburg’s two bills has been referred, declined to comment on the legislation but said Chairman Thomas Carper (D-Del.) “will examine the impact of existing federal safety and security regulations on facilities like West Fertilizer and seek to identify whether additional steps should be taken to protect the public.”

The Senate panel will also “examine why the West facility was not registered with the Chemical Facility Antiterrorism Standards program, as it appears it should have been,” spokeswoman Jennie Westbrook said.

Staff for the Senate Environment and Public Works Committee, to which Lautenberg’s other bill has been referred, declined to comment.

One House Democratic aide suggested it might be premature to determine that requiring upgrades to safer technology is the appropriate way to address whatever problems might have caused the explosion. The aide, who asked to remain anonymous due to not being authorized to discuss the matter publicly, said it might be best to first evaluate what could be done to ensure such facilities do not slip below the DHS radar in the future.

The CFATS program has already been the subject of controversy in recent years, since a leaked internal memo identified a litany of management problems and a failure by department personnel to complete reviews of facility security plans. Homeland Security officials have also yet to issue long-pending rules on screening chemical plant personnel for terrorist ties and on the handling of ammonium nitrate – the substance believed to have exploded in Texas.

Last year, House Republicans used the issues identified in the internal memo to justify a proposed 40 percent funding cut to the program. On Tuesday, a spokeswoman said House Appropriations Homeland Security Subcommittee Chairman John Carter (R-Texas) is “very concerned” about why the West plant did not enroll in the CFATS program.

“With that said, Chairman Carter is not going to make any further comment until more facts and information come out about the West explosion,” spokeswoman Sara Threadgill said.

A spokeswoman for Senate Appropriations Homeland Security Subcommittee Chairwoman Mary Landrieu (D-La.) declined to comment but said the issue would likely come up during a hearing on Tuesday afternoon.

Industry officials had strong words for those who have suggested the incident suggests a need for tougher chemical security laws.

“I’m appalled by some of these calls from members of Congress saying that ‘if only our terrorism standards were stronger these industrial accidents could be prevented,’” said Bill Almond, vice president of government relations for the Society of Chemical Manufactures and Affiliates. “That’s absurd and it’s an inaccurate picture of how federal regulations are designed for the chemical industry.”

Almond argued the CFATS program was merely intended to add an antiterrorism component to existing chemical safety rules administered by other agencies, meaning the West incident is not necessarily indicative of failures of the DHS program. State and local zoning regulations could also be to blame, he suggested.

“I think at this point Congress should do nothing and it should wait until the [U.S.] Chemical Safety Board has had a chance to investigate and find out exactly what went wrong,” Almond told Global Security Newswire.

Scott Jensen, spokesman for the American Chemistry Council, added that upgrading chemical plants to so-called inherently safer technologies – as Lautenberg’s bills would mandate -- is often more complicated then it might seem. Such upgrades are not always as simple as swapping out one chemical for another, he said, adding that often there “is good reason” why a particular substance is being used.

Like Almond, Jensen suggested Congress should wait until the Chemical Safety Board completes its ongoing investigation of the explosion before taking any action.

The Chemical Safety Board has already suggested, though, that mandates from state, local or federal regulators to switch to inherently safer technology could have prevented other recent accidents. Such a recommendation was delivered in a report the board released last week on a massive 2012 fire at a Chevron oil refinery in California.

Labor and environmental groups have argued that the Environmental Protection Agency has the authority to require such upgrades under the Clean Air Act, though it has never issued regulations utilizing that power. Agency rules mandate that facilities such as the West site submit risk management plans, “but those regulations are primarily procedural, requiring facilities to prepare and file planning documents with federal authorities; they do not impose substantive requirements to prevent chemical hazards through the use of safer technologies,” a coalition of labor and environmental groups argued in a petition to the agency last year.

The so-called blue-green coalition, which includes the United Steelworkers, Sierra Club and others, has leveled similar criticism of the DHS program.

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