Federal agencies have a potentially powerful weapon in environmental or workplace safety cases, one that might be used in the West Fertilizer Co. case: “general duty” clauses in the agencies’ authorizing laws. Because no set of specific rules can anticipate every circumstance, the clauses make companies responsible for keeping their facilities safe. The clauses include the:
Clean Air Act: Owners handling extremely hazardous substances have a general duty to identify chemical-release hazards, design and maintain facilities to prevent releases and minimize effects of releases.
Occupational Safety and Health Act: Employers have a general duty to provide jobs and workplaces free of deadly or serious safety hazards.
Here are some cases of explosions and/or toxic leaks in which the Environmental Protection Agency and the Occupational Safety and Health Administration pursued enforcement based on general duty clauses. (Statements are from either EPA or OSHA summaries.)
AL Solutions Inc.
West Cumberland, W.Va.; titanium-zirconium processor
A fire and explosion in December 2010 killed three people and hurt one.
“Large quantities of combustible titanium and zirconium metals were stored in an unsafe manner … creating the potential for fire and explosion … [in] the presence of ignition sources resulting from the lack of bonding or grounding of metal items, and other spark producing equipment.” The company used the wrong fire-suppression system, which doused the burning metals with water — forbidden and extremely dangerous in metals fires — instead of sand and salt.
EPA: General duty; no fine.
OSHA: General duty; fined $25,200; settled for $17,640.
Relevance: West Fertilizer stored large quantities of ammonium nitrate in what regulators might decide to call an unsafe manner. An electrical problem might have started the fire. The warehouse did not have a sprinkler system, recommended for keeping ammonium nitrate fires from becoming explosions.
Texas City, Texas; refinery
Fires in March 2004, July 2005; chemical leak, August 2005; explosion, March 2005. The explosion killed 15 people and injured 170. Fires and leaks released thousands of pounds of flammable and toxic air pollutants.
EPA: General duty; the company also did not identify all regulated hazardous air pollutants in mandatory reports; fined $15 million.
OSHA: General duty; fined $21 million, September 2005; additional $13 million, July 2012, for subsequent violations including “willful” process-safety violations.
Relevance: The West explosion killed 15 and injured 200, forced evacuations and released an undisclosed amount of toxic anhydrous ammonia. Also, mandatory reports before 2011 do not list large amounts of ammonium nitrate, although other documents show the chemical’s presence as far back as 2006.
Chemcentral Midwest Corp.
Kansas City, Mo.; chemical processor and wholesaler
An explosion in February 2007 seriously injured two employees and caused “catastrophic loss” of the facility.
“The employer did not heed hazard warnings that were published in the manufacturer’s material safety data sheet regarding the unstable properties of Indopol polybutylene when handled and stored at elevated temperatures … even though the warnings were passed on to customers by the employer via printed and electronic methods.”
EPA: General duty; also failed to identify all regulated hazardous air pollutants in mandatory reports; fined $225,000.
OSHA: General duty; also specific violations; fined $126,500; settled for $94,875.
Relevance: The material safety data sheet from West Fertilizer’s ammonium nitrate supplier, CF Industries, states: “Contact with combustible material will increase fire hazard. May undergo detonation if heated under confinement causing pressure buildup or if subjected to strong shocks. Solid AN when sensitized or during decomposition may become unstable and/or explosive. … Flood burning ammonium nitrate fertilizer with large volumes of low pressure water. … Handling and storage: See NFPA 400 Hazardous Materials Code (2013 Edition). Store in well-ventilated area away from acute fire hazards and easily oxidizable materials.”
West Fertilizer stored ammonium nitrate in wooden bins within a combustible warehouse with no sprinkler system. The National Fire Protection Association 400 fire code calls for sprinklers. Investigators say the fire destabilized the ammonium nitrate, causing the shock of falling debris to trigger two rapid explosions.
D.D. Williamson & Co. Inc.
Louisville, Ky.; food-coloring plant
A pressurized-tank explosion in April 2003 killed one worker, caused evacuations, released 8,000 pounds of ammonia and spread debris over a wide area.
EPA: General duty; failure to conduct an internal investigation; previous risk-management plan violations; fined $300,000.
OSHA: General duty; also specific violations; fined $10,000.
Relevance: The West Fertilizer explosion killed 15, injured 200, caused evacuations, released an undisclosed amount of ammonia and spread debris over a wide area.
First Chemical Corp.
Pascagoula, Miss.; chemical plant
An explosion in October 2002 injured three workers, spread debris and liquid chemicals over a square mile, littered a highway, broke windows, damaged businesses and houses and sent wreckage into a 300,000-gallon chemical tank, which then caught fire. The blast threw a six-ton section of factory tower into a refinery pond 1,500 feet away and nearly damaged many other tanks, including a 500,000-pound ammonia tank.
EPA: General duty; fined $731,000.
OSHA: General duty; fined $42,000; settled for $15,300.
Relevance: The West Fertilizer blast killed 15, injured 200, caused evacuations, released an undisclosed amount of ammonia and spread debris over a wide area.
Dalton, Ga.; chemical plant
A runaway chemical reaction in April 2004 released more than 4,000 pounds of toxic allyl alcohol into a neighborhood, forcing evacuations in a half-mile radius and sending more than 150 people — including first responders — to a hospital. The reaction burned off vegetation for a half-mile and killed most aquatic life in miles of streams.
EPA: General duty; fined $270,000.
OSHA: General duty; also specific violations fined $20,400; settled for $12,200.
Relevance: West Fertilizer explosion killed 15, injured 200, caused evacuations, released an undisclosed amount of ammonia and spread debris over a wide area.
Morton International Inc.
Paterson, N.J.; dye manufacturer
An explosion in April 1998 in a 2,000-gallon process reactor burned nine employees, two seriously, and “blew a hole in the roof, created a massive fireball [and] coated the neighborhood with yellow dye. … Enough pressure was generated by the event (the kettle essentially behaved like a jet engine) to cause the kettle to fall 4 feet to the floor … [severing] all connections to the reactor, including electrical connections.” Sparks then ignited flammable vapors, creating a fireball visible from a quarter-mile. City firefighters needed four hours to put out the fire.
EPA: General duty; fined $50,000; also, $200,000 in funding was needed for local environmental or safety projects.
OSHA: General duty; fined $7,000; settled for $5,000.
Relevance: The West Fertilizer fire sent up black smoke visible from southern Dallas County and required a massive first-response the first night. A neighborhood cleanup and recovery are still incomplete two months later.
LANGUAGES OF THE LAWS
Clean Air Act: “The owners and operators of stationary sources producing, processing, handling or storing such substances [i.e., a chemical in 40 CFR part 68 or any other extremely hazardous substance] have a general duty [in the same manner and to the same extent as the general duty clause in the Occupational Safety and Health Act (OSHA)] to identify hazards which may result from (such) releases using appropriate hazard assessment techniques, to design and maintain a safe facility taking such steps as are necessary to prevent releases, and to minimize the consequences of accidental releases which do occur.” (Section 112(r)(1))
Occupational Safety and Health Act: “Each employer — (1) shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees; (2) shall comply with occupational safety and health standards promulgated under this Act.” (Section 5).
SOURCES: Environmental Protection Agency and Occupational Safety and Health Administration enforcement databases; Dallas Morning News research.