When they toured the devastation caused by the April 17 explosion at West Fertilizer, Texas' U.S. Senators pledged that investigators would get to the bottom of what happened. The disaster killed 15, injured hundreds of residents, and destroyed dozens of homes and buildings. Senator Ted Cruz said:
"We need to allow time for a careful investigation of what occurred. We all want to know what happened here."
Senator John Cornyn said:
"I'm confident there will be exactly the kind of review you're talking about on the local level, state level and the federal level. We have authorities from all of those jurisdictions here in place."
Those local, state and federal authorities may have been in place, but getting them to cooperate is another story.
The U.S. Chemical Safety Board (CSB), an independent federal agency established in 1998 to investigate industrial chemical accidents, deployed more than a dozen investigators to West, Texas within 24 hours of the massive blast. This week---more than a month after the disaster---we learn that the CSB has been stymied in their efforts.
News accounts in the Austin American-Statesman, the Dallas Morning News and other outlets report that the agents with the Bureau of Alcohol, Tobacco and Firearms (ATF) and the State Fire Marshall have blocked the CSB from accessing the scene, conducting witness interviews, gathering chemical inventory and other safety records. The Austin American-Statesman's story notes:
"In the ATF's search for criminal culpability, the investigators brought in earthmoving equipment that obliterated possible clues that could help safety experts. The CSB wanted to exactly measure the crater left by the explosion to gain information on the nature and intensity of the blast. But the area has been excavated, making those measurements impossible."
Most recently, when a CSB director sent his ATF counterpart a request for CSB staff to gain access to the site on May 15, the Statesman reports:
"Two hours later, he got a terse response back... 'Access denied until further notice. We are not releasing the site at that time. Secondly, we are releasing the site to the responsible party's [West Fertilizer] attorney...when we are finished. Date unknown.'"
Really? That's how ATF responds to an official from another federal agency? It's sure not consistent with what I read on ATF's website about their professionalism and service. ATF says it "partners" with other public safety agencies and dispatches its services "to help federal, state and local investigators." At West Fertilizer, it sounds like the ATF is acting like the big gun in town. The heck with other agencies that also have a job to do.
Despite what ATF might think, their investigation is not the only one that matters. ATF is interested in determining whether regulations related to explosives were violated at West Fertilizer. That's a worthwhile objective, but quite narrow in scope. If no violations are identified, the ATF's official investigation role is done.
The CSB, in contrast, is tasked with examining both the how and why such incidents occur. Their objective----like the National Transportation Safety Board----is to make recommendations that specifically address the factors that caused or contributed to the incident. Congress established the CSB with the express purpose of making recommendations "so that similar events might be prevented." Their role is different from the ATF's, and as important.
The CSB prepares detailed disaster investigation reports which describe all the meaty physical evidence and a step-by-step account of what happened. The reports frequently assess organizational factors, such as production pressure or budget decisions, which usually play a role in these man-made disasters. (Although, as the Center for Public Integrity recently reported, not as promptly as we'd like.) For some incidents, the CSB develops powerful video animations of the disasters, such as the incident at Excel Energy in 2007 that killed five workers, the 2010 explosion at the DuPont facility in Tonawanda that killed a welder, and the August 2012 fire at the Chevron refinery in Richmond, CA. As for the ATF, I was hard pressed to find anything on the ATF's website or in their on-line library that looked like an investigation report.
The CSB's investigations, whether for high-profile incidents like the 2005 BP Texas City disaster or lesser known events (here, here, here,) contain detailed analyses of the catastrophic events themselves. More important, they include pertinent recommendations to regulatory agencies, trade associations, consensus standard setting organizations, labor unions and others. If adopted, the recommendations will prevent similar events from happening in the future.
The ATF agent in charge of the West Fertilizer investigation told the Statesman that a criminal investigation:
"comes with certain sensitivities. You need to keep it to law enforcement only."
Who gave ATF the authority to decide that the needs of one group of investigators takes precedence over another? Each of the federal, State and local authorities investigating the West Fertilizer plant disaster have different responsibilities, authorities and expertise. That's what Texas Senator John Cornyn pointed to in the wake of the West Fertilizer disaster as the way we'd find out what, why and how it happened.
I hope the Senator tells the ATF to figure out a way to do its job without obstructing another agency's duty to meet its responsibilities.
The unspoken presumption of CSB investigations is that if you cooperate with the CSB you will not be prosecuted. Since CSB findings are inadmissable in court, the CSB investigation can make it impossible to prosecute a party that has grossly violated the law. Much as we may want the information to be gained, we also don't want the CSB to become a "get out of jail free card".
The CSB is all about voluntary stuff, recommendations and such. That's all well and good but it necessarily takes a back seat to enforcement.
A set of recommendations won't stop the next fertilizer explosion, but a reasonable certainty of prosecution for willful negligence might.
Department of Public Safety Director Steve McCraw told the Texas House Committee on Homeland Security and Public Safety said that oversight and preparedness is “a local up,” he said. “It’s not a state down.”
I guess the corruption works the same way.
Or is that just more fertilizer that I smell?