“We’re Yesterday’s News”

That headline is a quote from Mayor Tommy Muska of the town of West, Texas, in the Dallas Morning News of November 21, regarding the Trump administration’s rescission of U.S. Environmental Protection Agency standards for disaster prevention in chemical facilities, issued that day.

Aerial photo of the west explosion site taken several days after blast (4/22/2013). By Shane.torgerson – Aerial photo taken from my plane Previously published: Facebook and Flickr, CC BY-SA 3.0, https://commons.wikimedia.org/w/index.php?curid=25727808

So much news passes under the bridge in one month these days that readers can be forgiven if they do not immediately recall what happened in West on April 17, 2013, but my guess is that many do. Or they may if I nudge them by noting that the West Fertilizer Company suffered an explosion in a storage facility at the edge of this small city of 2,880. The explosion resulted from the combustion of ammonium nitrate, a common ingredient in fertilizer, which is notorious for its chemical instability. Still, the facility had been there since the 1960s, but West had over the years allowed a middle school, an apartment building (which was destroyed), a nursing home, and other structures to be built nearby. When the explosion occurred, 160 people were injured, 14 first responders (mostly firefighters) were killed, and one elderly man died of a heart attack as the nursing home was evacuated. All that triggered a bit of soul searching about loose regulations at all levels of government regarding the operation of such facilities, their disproportionate environmental impact on vulnerable populations, and how better to prevent future disasters.

One year later, in May 2014, I wrote in this blog about West following my own involvement on an expert panel for the federal Chemical Safety Board, which held a hearing in West on the anniversary of the disaster. I raised some pertinent questions about Texas chemical and fire safety regulation that were of interest to the board.

In the meantime, however, moves were afoot in the Obama administration to respond to the larger questions of chemical facility accidents. According to Earthjustice, an environmental advocacy group, in the decade up to the West accident the U.S. had experienced 2,200 chemical accidents at hazardous facilities, two-thirds of which caused reported harm, including 59 deaths and more than 17,000 people injured, hospitalized, or seeking medical care. As a result, President Obama signed on August 1, 2013, Executive Order 13650, “Improving Chemical Facility Safety and Security,” which set in motion a rule-making procedure at the U.S. EPA. By July 31, 2013, EPA issued a Risk Management Program request for information in the Federal Register, proposed new rules on March 14, 2016, and finalized the new rule, known for short as the Chemical Disaster Rule, on January 13, 2017, with one week remaining before President Trump took office.

The final rule is a bit complex, using 112 pages of the Federal Register, but among other items specifically required a “root cause analysis” as part of an incident investigation to determine what “could have reasonably resulted in a catastrophic release.” It would also require compliance audits after reported incidents and required all facilities with certain processes to conduct annual notification exercises to ensure that emergency contact information was complete. The overall idea was to improve effective coordination with local emergency responders. One problem that caused fatalities in West was a lack of firefighter awareness of the precise contents and dangers of the facility that exploded. Thus, the requirements in the rule for field and tabletop exercises. Finally, the rule aimed to enhance the availability of information about chemical hazards in these facilities including sharing such information with local emergency planning committees.

The rest is almost entirely predictable. With little grasp of public policy but considerable animus toward anything with Obama’s name on it, Trump put his appointees to work undoing his legacy. That included action by then EPA Administrator Scott Pruitt on March 16, 2017, in response to an industry-sponsored petition, to announce a 90-day stay of the Obama-era rules, followed by an extension to 20 months shortly thereafter. In the meantime, Louisiana and 10 other states, including Texas, petitioned for reconsideration of the Obama rules. The delay would last until February 19, 2019. However, the U.S. Court of Appeals for the District of Columbia, responding to a petition from environmental groups, vacated the Trump rulemaking. But now we have a final rule from the Trump EPA officially rescinding the Chemical Disaster Rule.

The public information aspect of the rule became a target, with the Trump administration claiming it was responding to homeland security and emergency management experts who feared that such information would become a target for terrorists. However, it would seem to me that far more people have been affected by routine chemical accidents than by any terrorist incidents at such facilities. The U.S. EPA also noted that the rules would not have prevented the accident at West because it was ultimately determined to have been caused by arson. It is worth noting, however, that most of the first responder fatalities in that incident were more credibly the result of a lack of training and information on the potential explosiveness of the materials involved, which might have prompted greater caution and different tactics by firefighters. And none of this answers the questions I raised in my 2014 blog post about land-use practices and limitations on fire safety codes in Texas.

So, back to Mayor Muska, who is reportedly disappointed with the outcome, and for good reason. His town has to live with the results of the 2013 explosion, which decimated the volunteer firefighter staff and obliterated a local business (and employer). Muska was mayor when the disaster happened and is now serving his fifth term. I think it is worth sharing the comments he made in the final two paragraphs of the Dallas Morning News story:

“The American people and American politicians, they have a short memory,” Muska said. “They’re going to say everything is fine, and every few years something like this is going to happen again, and ‘Oh, yeah, we need to look at this again.’

“We’re yesterday’s news. It’s not on anybody’s minds as it was in ’13 and ’14.”

Jim Schwab

The High Cost of Indifference

As a young man from a blue-collar family, I partially worked my way through college during the summers at a chemical company near Cleveland that employed my father as a truck mechanic. If there is one thing I learned at the time, it was the value of safety and industrial hygiene. The first summer I was there, we college students were rotated through various departments to fill in for men on vacation. One produced cuprous chloride, where I learned that not keeping a gas mask on would quickly make you dead. Others produced chemicals that produced itches and rashes if you were not careful, and in one I fractured my left ankle when an antimony kiln tipped over. I could go on, but the point is simple: Safety matters.

That theme, however, does not yet seem to be official gospel in Texas. I don’t want to issue a blanket indictment here, because I know some state officials probably want things to be different, but they don’t seem to hold the reins of power. Those who do hold those reins prefer a state that boldly advertises its lack of regulations. They see them as impediments to attracting business. The fact that enlightened businesses have often supported environmental, safety, and public health reforms seems not to affect their point of view.

I am offering this perspective now because the Texas State Fire Marshal’s Office in the past week released a long-awaited Firefighter Fatality Investigation, which it was legally required to produce, and issued a number of recommendations for improvements that could save lives in the future. The study was the result of the explosion in a fertilizer storage facility in West, Texas, on April 17, 2013.

Earlier this spring, I was asked to serve on an expert panel on planning and land use for the Chemical Safety and Hazard Investigation Board (CSB), a federal agency created in 1999 to investigate chemical and hazards materials accidents. It was one of two panels organized for a hearing in West, Texas, on April 22, a little more than one year after the incident in which a fertilizer storage facility exploded, killing 15 people, two-thirds of them fire fighters. The explosive material was ammonium nitrate, which has a history of such accidents and was also the material used by Timothy McVeigh in the bombing of the Murrah Federal Office Building in Oklahoma City in 1995. The CSB is still working on a report documenting its findings about the incident in West, and I do not wish to comment on or explore the issues that require more technical and scientific investigation to determine precisely what happened.

But there are issues about which I learned that I find troubling on the surface, even without the help of that ongoing investigation. For one, Texas law prohibits counties of fewer than 250,000 residents, unless they are adjacent to a county of 250,000 or more, from adopting a fire code. This is somewhat in line with the fact that Texas also has never bestowed zoning authority on its counties, rendering them powerless to influence land use outside incorporated municipalities (which have their own authority). This was one subject of inquiry by the board at the evening hearing, which lasted four hours, but even the state fire marshal, sitting just to my left on the same panel, could offer no explanation for the origins or rationale of that prohibition. He merely indicated at one point that obviously, as a fire marshal, he would rather not see such restrictions. Nonetheless, over the past year since the explosion, and despite ongoing investigation of such issues by the Dallas Morning-News, there is no sign of movement from Gov. Rick Perry’s office on changing the law. There are indications from Lt. Gov. David Dewhurst, who apparently prefers a different approach. Good for him. And for St. Rep. Joe Pickett of El Paso, who chairs the Texas House Committee on Homeland Security and Public Safety, who also favors reexamining such issues.

The issue is not simply the usual question of unfunded (or even funded) state mandates. I have followed state planning legislation for years, and about half require local communities to prepare comprehensive plans (also known as master or general plans), to one degree or another, sometimes distinguishing on the basis of community size or some other factor. About ten of those, in one form or another, require communities to include in those plans an element addressing natural or other hazards. The rest of the states have permissive legislation, which grants local governments the authority to undertake planning and zoning without requiring it. It is easy enough to understand why some states are more reluctant than others to impose such a mandate, and similar distinctions between mandating and permitting apply to issues like building and fire codes. What is hard to justify, however, unless one believes in libertarianism run amok, is actually prohibiting such regulation at the local level or denying such authority. In fact, only Texas, to my knowledge, has in place the prohibitions I have described. And I simply do not understand why a state sees it in the public interest to bar counties, in this instance, from adopting safety codes with regard to fire prevention. Whose interests are served by this?

It turns out that McLennan County, where West is located, and whose county seat is Waco, does not have a fire code. Moreover, the fire fighters who died had not been trained in the handling of ammonium nitrate, a substance with a notorious history of unpredictable behavior. The hearing included discussion of the need for more and better research on that point, and for better understanding of this chemical’s behavior, in order to prevent future incidents like the explosion in West. All of that is wise and appropriate.

But there are things the state of Texas can fix now, if only it moved beyond its regulatory myopia to see the larger public safety issues that transcend the simplistic notion that regulation necessarily inhibits job creation. That is a dubious premise in any event, but it also begs the question of what price must be paid to create jobs when brave men like the volunteer fire fighters who responded to the blaze in West must pay the ultimate price just to satisfy such ideological predilections. And what jobs remain at West Fertilizer now? The event is a major setback to economic development in a small town like West, and it will take time to heal.

The Fire Marshal’s report includes some recommendations and conclusions that I find perfectly sensible. It notes, for one thing, that Texas has not adopted minimum training standards for volunteer fire departments. That alone would not be a bad place to start, along with the need for local fire codes. The report states, “The Texas Legislature should consider allowing all counties to adopt a fire code.” The report also notes the lack of a local plan to address hazardous materials, noting that standard procedure for residential or even most industrial incidents is inadequate for dealing with a facility like West Fertilizer.

Let me close by adding that West, judging from my admittedly brief visit, is a pleasant town that deserves better. I learned from a building sign next to the hearing site that West was the hometown of Scott Podsednik, an All-Star member of the 2005 Chicago White Sox team that won the World Series. It has an interesting Czech heritage that caused several people to urge me to visit the Czech Stop, a bakery just off northbound I-35 that sells what I now consider the best kolaches anywhere, as well as a very nice, engaging staff. And it has a mayor, Tommy Muska, who is banging on doors in Austin for answers to some of these urgent questions. I hope he and his town find some. At least then, the destruction of dozens of nearby homes, schools, and a nursing home will not have been in vain.

 

Jim Schwab