May 7 (Bloomberg) -- Five years after Congress mandated that sales of ammonium nitrate, the chemical implicated in last month’s fatal Texas blast, be tracked, rules to do that haven’t been issued by the federal government.
Six years after federal investigators pleaded with the Occupational Safety & Health Administration to curb combustible dust in factories, the rules remain a work in progress.
For advocates of safety and security of chemicals, the failure of the administration of President Barack Obama to issue these and other chemical-safety standards represents a failure to live up to his campaign promises.
“What worries me is that there are some really significant risks that are just not being addressed by anybody, either the industries or the administration,” said Michael Wright, director of health and safety at the United Steelworkers union, who rates as “poor” the administration’s efforts. “So far no referee has stepped up to the plate.”
The explosion of a fertilizer-plant in West, Texas, on April 17, which killed at least 14 and caused more than $100 million in property damage, has fueled a national debate over the adequacy of chemical-safety laws and regulations.
“Chemical plant safety is a priority and when it comes to complex safety rules, it is critical to get them right,” Jessica Santillo, a spokeswoman for the White House’s Office of Management and Budget, which reviews regulations, said in an e-mail.
Ensuring the security and safety of chemicals was a priority of Obama during his tenure in the Senate, as he warned that an industrial accident or terrorist attack at a refinery, water-treatment facility or chemical plant could cause widespread casualties.
“Basically these plants are stationary weapons of mass destruction spread all across the country,” Obama said in March 2006. “Their security is light, their facilities are easily entered, and their contents are deadly.”
As a candidate for president, Obama promised in 2008 to “secure our chemical plants by setting a clear set of federal regulations that all plants must follow.” Just days before the election he mentioned it as an example of where government regulation is needed, despite industry pressure.
“Well, I think it’s a classic example of special interests lobbying,” Obama told MSNBC television. “There has been resistance from the chemical industry.”
Since taking office, his administration hasn’t pressed ahead with the regulatory efforts he had advocated. Industry lobbyists have made the case that the proposed rules will harm companies and cost jobs, an argument that Lisa Heinzerling, a Georgetown University law professor, said is carrying the day.
Because the costs are widespread, and the risks -- while potentially catastrophic -- are limited, the administration’s cost-benefit analysis may not favor these types of rules, Heinzerling, a former aide at the Environmental Protection Agency under Obama, said in an interview.
“It’s never easy to persuade them to take on industry,” she said. “There is something about this category of regulation that is not congenial to their agenda.”
Not all regulations have been slow-moving under Obama.
After a legal settlement in 2009, the EPA issued new restrictions on mercury and other toxic emissions from power plants at the end of 2011. It was one of the most costly rules ever issued by the agency, and was followed a year later by similar standards for cement plants, industrial boilers and waste incinerators. The Consumer Financial Protection Bureau, created in 2010, has already issued a dozen rules this year.
OSHA has finalized one chemical rule, modifying what chemical hazards companies must disclose to comply with a system set up under the United Nations.
The explosion of the Adair Grain Inc. facility in Texas left a crater 93 feet (28 meters) wide by 10 feet (3 meters) deep and represents the deadliest U.S. industrial accident in three years. While investigators haven’t said what caused the blast, the plant was approved to store 270 tons of ammonium nitrate.
Under existing rules of the Homeland Security department, companies are mandated to disclose large-scale stores of the explosive. None of the pending rules critics are complaining about would have had a specific impact on the Texas catastrophe.
The U.S. has about 90 facilities -- including chemical factories, refineries and water-treatment plants -- that potentially pose a risk to more than 1 million people, according to a Congressional Research Service report in November that analyzed reports submitted to the EPA.
About 400 other facilities could pose risks to more than 100,000 people, according to the report. The calculations were based on a “worst-case release scenario” such as an explosion or leak, and the proximity of the plant to population centers.
The AFL-CIO labor federation today released its annual Death on the Job report, compiling Labor Department statistics to show that 4,693 workers were killed on the job in 2011. After years of steady decline, the number of workplace fatalities and injuries has “essentially been unchanged” for the past three years, the report said.
Since Timothy McVeigh destroyed the Alfred P. Murrah Federal building in Oklahoma City 18 years ago with a truck full of ammonium nitrate, security advocates and lawmakers have pressed for greater regulation of the sale of the product, which is used as a fertilizer and industrial explosive.
A National Academy of Sciences panel in 1998 advocated greater regulation, saying retail sales should be prohibited unless “consumers produce identification and retailers keep accurate records of transactions.”
It took a decade for Congress to endorse the recommendation in a measure that became law in 2008 mandating the Department of Homeland Security to regulate the sales.
Under President George W. Bush, the department issued a pre-proposal of a rule, called an advanced notice of proposed rulemaking. Three years later Obama’s department issued its proposal, which would mandate that ammonium nitrate retailers register, and then that they verify and keep records of each sale of ammonium nitrate of more than 25 pounds.
That proposal garnered more than 100 public comments, most of them critical of that plan, urging that it be scaled back.
“Individual members anticipate that, as currently proposed, the program will impose a high economic cost on their facilities’ day-to-day operations, which ultimately will require them to transfer those costs to agricultural producers,” the Fertilizer Institute, a Washington-based industry advocacy group, said in its comments in 2011.
The Homeland Security agency is still working on the final rule. It’s listed under “long-term actions” on the department’s regulatory agenda.
“DHS is committed to continuing to work with private industry and other stakeholders in our efforts to secure potentially dangerous chemicals, including ammonium nitrate, to ensure those chemicals do not fall into the hands of those who could cause harm, while still facilitating legitimate use,” Peter Boogaard, a department spokesman, said in an e-mail.
Another rule that has languished concerns crystalline silica, which is found in sand, stone, rock, concrete, brick, block, and mortar. It is encountered by workers doing masonry, sand-blasting, mining and glass manufacturing, according to OSHA. Inhalation of the tiny sand particles can cause silicosis, a disease of the lungs that has no cure.
The government set exposure limits in the 1970s, and hasn’t adjusted it since then. After years of delay, OSHA began a review of the health effects of silica in early 2009, and sent its initial proposal about how to cut the mandated limits to the White House Office of Management in Budget on Feb. 12, 2011.
Those OMB reviews are mandated by executive order to last 90 days. The proposal has been at OMB for more than two years.
“We have been trying to get the proposal released,” said Peg Seminario, director of occupational safety at the AFL-CIO labor federation in Washington, said in an interview. OMB officials “tell us it’s complicated. We don’t think it’s that complicated.”
Jesse Lawder, a spokesman for the Department of Labor, didn’t respond to e-mail and telephone requests for comment.
Following three industrial explosions at plants caused by combustible dust, the Chemical Safety Board, an independent agency that investigates accidents, issued a report in 2006 calling for a new OSHA standard to prevent those fires or explosions. After the Imperial Sugar plant in Port Wentworth, Georgia exploded in 2008 and killed 14 people, the independent board renewed its plea to OSHA to “proceed expeditiously” on the 2006 recommendation.
So far, no proposal has been issued by OSHA, which says it is working on the “pre-rule.”
“They are out there, just waiting to blow up,” Eric Frumin, safety advocate for the labor group Change to Win, said in an interview.
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