WEST HEARING: Lawmakers question oversight, agency roles


by MARK WIGGINS / KVUE News and photojournalist MICHAEL MOORE

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Posted on May 1, 2013 at 8:11 PM

Updated Wednesday, May 1 at 8:20 PM

AUSTIN -- Convening the first legislative hearing in response to the deadly explosion at the West Fertilizer Company, House Homeland Security and Public Safety Committee Chairman Joe Pickett (D-El Paso) outlined a list of objectives. 
"The intent of this hearing is to try to shed light on where these facilities are located, what kind of chemicals we're talking about," Pickett told witnesses inside a packed meeting room Wednesday morning inside the Texas Capitol Extension.
Officials from a half dozen state agencies offered testimony concerning their various regulatory responsibilities. Officials from the Department of State Health Services (DSHS) testified thousands of facilities across the state store potentially hazardous materials, including 41 facilities similar to the one in West that are involved in the mixing or storage of ammonium nitrate fertilizer.
According to DSHS officials, the West facility contained about 270 tons of ammonium nitrate. Despite its explosive potential when mixed with heat and fuel, ammonium nitrate is not on the U.S. Environmental Protection Agency's (EPA) list of "extremely hazardous substances." Those who possess more than 10,000 pounds must file paperwork with the EPA and DSHS, but the information concerning which facilities in a given community may be storing large amounts of potentially dangerous chemicals isn't readily available to the average citizen. 
At the state level, the job of inspecting fertilizer factories and retailers is the job of the Texas Feed and Fertilizer Control Service headed by Texas State Chemist Tim Herrman. Testifying before the committee, Herrman said the focus of inspections is on ensuring product quality and securing it from theft, not ensuring safety or addressing potential fire risks.
Texas Division of Emergency Management Chief Nim Kidd told lawmakers addressing safety concerns is the task of local emergency planning committees, of which there are roughly 270 across the state. Bryan Shaw, Chairman of the Texas Commission on Environmental Quality (TCEQ), told KVUE the issue of inspections is tricky.
"There have been calls since the day after the explosion that if we had more inspections of some kind that this could have been prevented," said Shaw. "The question we have to ask is: What would you see? What is it do you expect you could have learned from that to have said, 'Ah hah!' This could be a hazard that we need to mitigate? Until we know what that cause was, we don't even know what we would say those inspectors would need to be looking for."
Assistant State Fire Marshal Kelly Kistner says 80 investigators are busy reconstructing events inside the 14.9 acre blast zone. Workers from dozens of local, state and federal agencies have spent some 12,000 personnel hours, conducted nearly 300 interviews and pursued more than 160 leads since the investigation began. The task has gone through roughly half of the $1 million in federal funds budgeted for the investigation into the fire and explosion.
Meanwhile the investigation into the cause has eliminated a few possible causes. Kistner says tanks of anhydrous ammonia, a chemical used in the production of ammonium nitrate, were found unharmed. Natural causes, such as a lightning strike, have also been ruled out, and officials with the Texas Department of Public Safety (DPS) believe terrorism is unlikely as well. That said, Kistner warns the cause isn't necessarily an accident.
"We are still operating under a state criminal search warrant, and that needs to be known," said Kistner. "We will not know whether this was a criminal act until this investigation is complete."  
The results of the investigation are expected by May 10th. Meanwhile, groups outside the Texas Capitol immediately called upon legislators to increase state oversight when it comes to facilities like the one in West following Wednesday's hearing.
"Texas would benefit from state inspections of industry to supplement federal inspections that are completely insufficient," Texas AFL-CIO President Becky Moeller wrote in a statement Wednesday. "At current funding levels, it would take the federal Occupational Safety and Health Administration 126 years to inspect every workplace in Texas on a routine basis. But a state OSHA could focus attention on facilities in high-risk industries. We would suggest there is no question that the storage of tons of fertilizer is high-risk.”
Emphasizing the hearing's goal was to learn from the disaster and not to assign blame, Pickett struck back at Texas' national critics while meeting with reporters after the hearing.
"I do take offense to people outside of the state picking on Texas because we had the first tragedy," said Pickett. "Well maybe we helped prevent yours. I think we're in good shape." 
It's the first of many more hearings to come.