Smoking gun in West, Texas, fertilizer blast: lack of government oversight

The tragic explosion at a West, Texas, fertilizer plant April 17 is the most recent manifestation of a badly debilitated system of regulatory protections.

Although the cause of the blast is still undetermined, what is clear is that the West Fertilizer Company stored large quantities of highly reactive products, including anhydrous ammonia and ammonium nitrate, in the middle of a small town with very little oversight from state or federal agencies. Ammonium nitrate was used by the Oklahoma City bomber Timothy McVeigh in 1995, killing 168 people. The West, Texas, explosion killed 14, and injured nearly 200.

Texas does not have an occupational safety and health program that meets federal requirements. The federal Occupational Safety and Health Administration (OSHA) is therefore responsible for ensuring the safety of potentially dangerous workplaces like the West facility.

OSHA has inspected the West plant exactly once in the company’s 51-year history. That 1985 inspection detected multiple “serious” violations of federal safety requirements for which the company paid a grand total of $30 in fines. OSHA’s 1992 process-safety-management standard for highly hazardous chemicals is supposed to protect against disasters like the West explosion, but it wasn’t in place for that inspection.

Regardless, OSHA lacks the resources to undertake the kind of comprehensive inspection needed to ensure compliance with the process safety standard at small facilities like West Fertilizer Company. OSHA’s tiny staff of around 2,400 inspectors is spread so thin that it would take more than 90 years to conduct even cursory inspections of all eligible workplaces in Texas.

The Environmental Protection Agency (EPA) inspected the facility in 2006 and assessed a fine of $2,300 for failing to update a risk management plan, among other violations involving employee training records and maintenance. The company responded in 2011 with an updated plan stating that the “worst case release scenario” was a release of the contents of a storage tank over a period of 10 minutes; the threat of an explosion was not mentioned. The EPA  was apparently satisfied. The EPA lacks the staff to inspect any given facility more than once every decade or so.

The Texas Commission on Environmental Quality has so few inspectors that it can only inspect small plants like the West facility in response to complaints. It inspected the West plant in 2006 in response to a complaint about bad odors, and it was satisfied when the company applied for a new permit. Inspectors weren’t focused on the risk of explosion, though the US Pipeline and Hazardous Materials Safety Administration did fine the company $5,250 that year for improperly planning to transport anhydrous ammonia.

These regulatory agencies are supposed to be protecting the public from the risks posed by unsafe workplaces, releases of toxic pollutants, and catastrophic explosions. Yet their failure to focus on the risks posed by the West Fertilizer Company is not atypical. We saw similar failures with the 2005 Texas City refinery explosion (15 workers killed, 170 injured), the 2008 explosion at the Dixie Crystal sugar refinery in Georgia (14 workers killed), and the 2008 explosion at a Bayer CropScience chemical plant in West Virginia (two workers killed).

This lack of attention to the safety of our workplaces and neighborhoods is no accident. It is the product of a concerted attack by the US Chamber of Commerce, industry trade associations, and conservative think tanks on what they see as onerous regulatory programs – but ones that were enacted by Congress over the years to protect the public from irresponsible corporate misconduct.

These opponents of government regulation learned long ago that the best way to remove the burdens of regulatory programs was to starve the regulatory agencies and bash the bureaucracy, as I spell out in my recent book, “Freedom to Harm.” Until one delves into the facts or the next accident occurs, the agencies have only the appearance of protecting the public.

But the fact is, OSHA’s budget appropriation over the past three decades has remained essentially flat in constant dollars, despite a greatly expanding workforce subject to its jurisdiction. The ratio of OSHA inspectors to workers under its jurisdiction was 1-to-30,000 in the late 1970s; the ratio has since doubled to 1-to-60,000.

Things have only gotten worse in the last two years as agency budgets are sacrificed to shrill demands for deficit reduction. So it should come as no surprise that small companies like the West facility slip through cracks that the debilitated agencies are unable to fill.

Congress needs to increase the appropriations for OSHA and the EPA, but that is not likely in our current debt climate and under Republican leadership in the House. Another solution would be for both the EPA and OSHA to conduct follow-up inspections at facilities at which they identify serious violations.

Given the reluctance of Congress to properly fund the regulatory agencies, it may be time to give workers and neighbors the tools to take responsibility for ensuring that companies act responsibly and are held accountable to the public when they act irresponsibly.

Congress should empower workers and neighbors to address situations like the West fertilizer facility by allowing them to file actions on their own to enforce health and safety standards before violators kill and maim their workers and neighbors. Congress should also provide stronger protections for whistle-blowers who report unsafe working conditions in such facilities.

Let’s not wait until the next workplace disaster to ensure that adequate safeguards for workers and residents are in place.

Prof. Thomas O. McGarity (University of Texas School of Law) is a member scholar of the Center for Progressive Reform, and the author of the new book, “Freedom to Harm: The Lasting Legacy of the Laissez Faire Revival.”