Greater DHS Oversight of Fertilizer Eyed After West, Texas, Explosion

“Chemical facilities that are not run with the utmost care are a liability to everyone. Over the years, West Fertilizer had been broken into and vandalized repeatedly. The local residents complained about the strong smell of ammonia, a smell so potent it burned their eyes. The facility was routinely left open after hours, and police reports indicate 11 burglaries occurred over the last 10 years,” McCaul said. “West Fertilizer was literally a disaster waiting to happen.”

Rep. Patrick Meehan (R-Pa.), chairman of the subcommittee, said the tragic incident revealed the “disturbing fact” that there are thousands of facilities across the nation that store and handle large quantities of high-risk chemicals that have gone under the radar at DHS.

Several federal agencies share the responsibility of overseeing chemical plant security. EPA requires facilities holding hazardous substances to develop a risk management plan, implement safety, and analyze off-site consequences. The Occupational Safety and Health Administration (OSHA) has separate regulations on hazardous materials and conducts inspections of facilities. In addition, DHS, through the Chemical Facility and Anti-Terrorism Standards (CFATS), also regulates high-risk chemical facilities.

Created in 2007, CFATS prescribes a regulatory framework for facilities that produce, handle, or store high-risk chemicals in the U.S. The program was intended to offer a flexible, risk-based security program to prevent abuse and theft of high-risk chemicals by terrorists.

As Meehan noted, not only was West Fertilizer not registered with the DHS’s CFATS program, the department did not even know of the plant’s existence.

CFATS is based on self-reporting. For facilities that do not report to the DHS, basically nothing happens, noted Stephen Caldwell, the Government Accountability Office’s (GAO) Homeland Security and Justice director. Caldwell also pointed out that not until well along in the process – which could be months or years – does DHS actually inspect the facility to verify the information that has been reported to it.

Five years after Congress mandated that sales of ammonium nitrate be tracked, federal rules to do that have not been forthcoming, and DHS is still developing its final rule.

On top of that, GAO estimated that it could take another 7 to 9 years before DHS is able to approve the 3,120 site security plans in its queue.

Rep. Bill Flores (R-Texas), whose district includes West, said it appears the disaster happened because of West Fertilizer’s failure to comply with existing regulations and the lack of oversight enforcement. Flores said it is up to federal agencies and private industry to act promptly to adopt safety measures that can prevent similar disasters.

“Before Congress or regulatory agencies consider new statutes or rulemaking, they should make sure that the ones we have are being properly implemented and adjudicated,” Flores said.

Timothy J. Scott, chief security officer at Dow Chemical, told members of Congress that safety is a top priority for the chemical industry. Nevertheless, he stressed the need to ensure the effectiveness of rules already on the books.

“More regulations are not the answer, but rather communication, understanding compliance and enforcement of the established regulations already in place,” Scott said.

Scott said the chemical industry supports a multi-year reauthorization of CFATS and DHS to continue making progress and bring compliance and enforcement to the chemical security process.