He and Banks, who left the board in 2017 after 16 years, said their team was impeded by agents with the Justice Department’s Bureau of Alcohol, Tobacco, Firearms, and Explosives who had been brought in to conduct a criminal investigation. At one point, Holmstrom said, board investigators were banished from the cordoned-off blast site.
“We didn’t want to create any immediate friction, so we left,” Holmstrom said.
“From the outset, there was resistance to allowing us to have full access to the site because a criminal act had not been ruled out,” Banks said. Although there was no evidence of a crime, he said, the ATF kept board investigators at arm’s length, limiting their ability to gather forensic evidence and interview eyewitnesses. “We proceeded with our investigation as best we could,” Banks said. He and Holmstrom determined the fire to be accidental and believed faulty wiring may have been the source of ignition. The wooden building was combustible and had no automatic sprinkler system to suppress the flames; it wasn’t required under the law.
More important than the source of the fire, Banks said, were the conditions that allowed West Fertilizer to wreck 37 blocks of a small town. “Our main focus was to ask why 15 people died,” he said. “There was a profound lack of awareness of fighting an ammonium nitrate fire — that’s why [firefighters] were in harm’s way. There was the lack of a rigorous storage process, the lack of robust land-use planning, where houses and schools were a stone’s throw from this facility.”
In a 2014 report, the Government Accountability Office called attention to lapses by the EPA and OSHA. The EPA explained that ammonium nitrate was not covered by its Risk Management Program “because it was not considered a toxic or flammable chemical,” the GAO said. Nor was West Fertilizer covered by OSHA’s Process Safety Management standard, intended to prevent the sort of incident that ruined a sizable section of West. An exemption in the standard for retail facilities absolved their owners of responsibilities such as hazard evaluation, employee training, and compliance audits, the GAO found.
OSHA sought to close this loophole in 2015 with a directive changing its interpretation of the retail exemption. The exemption was carved out for businesses, such as gas stations, that sell hazardous chemicals in “small packages, containers, and allotments,” the memo said. It “should never have been interpreted to cover facilities engaged in distinctly wholesale activities” — such as West Fertilizer — which “handle large, bulk quantities of materials.”
The Fertilizer Institute and the Agricultural Retailers Association challenged the new interpretation in court, saying OSHA should have gone through a formal rulemaking process. The trade groups won, and OSHA retreated. “We were disappointed,” said David Michaels, who led the agency at the time. “A rulemaking would have required many years. Given the experience at West, we thought it was imperative to move quickly.”
In its final report on the accident in January 2016, the Chemical Safety Board chronicled a list of errors and missed opportunities. It noted, for example, that West Fertilizer had failed to report its 120,000-pound ammonium nitrate stockpile to DHS under the department’s Chemical Facility Anti-Terrorism Standards program. As a result, the board said, there was no DHS inspection that “might have noted the storage conditions at the … facility and prompted change.”
The EPA erred in not listing ammonium nitrate under its Risk Management Program and thereby adding another layer of protection to places like West Fertilizer, the board said. This was crucial given the “alarming number of [ammonium nitrate] facilities located in communities — next to schools, hospitals, residences, and businesses.”
Four months after the board’s report came out, ATF officials held a press conference at the West Knights of Columbus Club, about a mile north of the blast site. Saying “all viable accidental and natural fire scenarios were hypothesized, tested, and eliminated,” the bureau announced it had settled on arson as the cause of the fire. It offered a $50,000 reward for information leading to the perpetrator or perpetrators. No arrests have been made, and the investigation remains open.
Tommy Muska and many others in town were flabbergasted by the announcement. Muska called the finding “bullshit” and the reward “a complete joke” considering the number of lives lost and the $200 million in damage inflicted. “It’s covering the ATF’s ass is what it’s doing.”
In any event, the mayor said, “It doesn’t matter how it started. You could have had a cow in there kick a bucket over and start a fire — it still blew up.”
In a 2017 article in the Journal of Fire Sciences, fire-safety consultant Vytenis Babrauskas was unsparing in his critique of the ATF, calling it “highly troubling when a governmental agency makes an accusation of arson, yet offers no motive (or an insubstantial potential motive).” Babrauskas cited an editorial in Industrial Fire World that was similarly critical: “Even more worrying is the ATF’s assumption that if it cannot figure out what caused the fire and explosion then it must be skullduggery, not a flawed investigation.”
(In an email to Public Integrity and its partners, an ATF spokesperson wrote, “In strict accordance with the Scientific Method, Investigators developed, evaluated, tested, and subsequently eliminated all reasonable hypothesis as to origin and cause of the fire, except for one hypothesis.The only hypothesis that could not be eliminated and was validated by extensive testing at [ATF’s Fire Research Laboratory], was that the cause of the Fire was incendiary.”)
Babrauskas also reproached the EPA, OSHA, and DHS for allowing perilous conditions to exist for decades at West Fertilizer.
“There’s one — and only one — cause of an [ammonium nitrate] explosion, and that is an uncontrolled fire,” he said in an interview. “As soon as you realize that, the solution should be obvious to a third-grade student. You simply make uncontrolled fires impossible” by requiring that the fertilizer be stored only in non-combustible buildings and not wooden structures. He characterized the government’s performance in this regard as “grotesquely incompetent.”
Industry groups nonetheless seized upon the ATF’s arson finding in arguing against stricter regulations. At an EPA public hearing in April 2017, Richard Gupton of the Agricultural Retailers Association questioned the logic of basing new requirements for an industry “struggling with low commodity prices” on damage caused by an “intentionally set fire.” (The association did not respond to requests for comment from Public Integrity).
While ammonium nitrate is not listed under the EPA’s Risk Management Program, anhydrous ammonia is. Both products were sold by West Fertilizer; therefore, it fell within the program’s reach. Key provisions of the recently scaled-back Chemical Disaster Rule would have applied to facilities like it.
Even if the West Fertilizer fire were arson, that doesn’t diminish the threat posed by hazardous chemicals at thousands of locations around the country, said Gina McCarthy, who led the EPA during the Obama administration. “Nor does it negate the fact that if these facilities don’t take a look at root causes [of accidents] — which they don’t unless they’re told to — these risks can persist and lead to deaths,” said McCarthy, now president and CEO of the Natural Resources Defense Council. “That’s why we regulate them.” (Just last week, a massive explosion at an industrial warehouse in Houston killed two people, injured 20, and damaged about 200 homes.)
In its fact sheet, the EPA says the reconfigured Chemical Disaster Rule “retains all of the prevention provisions that have resulted in the long-term trend of fewer significant chemical accidents.”
In an email to Public Integrity and its partners, OSHA said it launched a special inspection program in nine southern and Midwestern states a year ago targeting facilities likely to handle or store ammonium nitrate. The agency has cited 10 employers in Texas, Nebraska, Kansas, and Missouri for alleged safety violations under the program.
DHS said it considers 88 of the 585 ammonium nitrate operations that fall under its Chemical Facility Anti-Terrorism Standards program to be “high risk.” Of these, the agency said, 77 have approved security plans that include perimeter security and background checks for people with access to chemicals.
The city of West’s lawsuit maintained that the ammonium nitrate manufacturers — CF Industries and El Dorado Chemical — shared blame for the explosion. The companies “acted negligently by refusing to satisfy the principles of product stewardship and, in particular, by failing to visit the facility before a sale and ensure proper management of the product,” said a response to the defendants’ motion for summary judgment in 2015.
The general manager of West Fertilizer, Ted Uptmore, testified in a deposition that neither the manufacturers nor a fertilizer broker, Inter-Chem, told him the ammonium nitrate was being stored in an unsafe manner or that it could cause an explosion, the pleading states. Had he known, Uptmore testified, he would have made changes in the operation.
El Dorado declined to comment, and CF Industries and Inter-Chem did not respond to messages from Public Integrity and its partners. The defendants’ motion said they “owed no duty to warn a professional, regulated, and highly experienced fertilizer distribution and blending company, like West Fertilizer.” The explosive capabilities of ammonium nitrate, the motion said, were “well understood.”
‘I had no idea it could do what it did’
Ammonium nitrate’s explosive capabilities were not well understood by the volunteer firefighters, who instinctively moved toward the fire on April 17, 2013, rather than away from it. They had toured West Fertilizer before and were mindful of the two tanks of anhydrous ammonia. But the ammonium nitrate was an afterthought.
“I knew it was volatile,” said Tommy Muska, the mayor, “but I had no idea it could do what it did.” One of the firefighters who died that night, Cody Dragoo, worked at the plant. “If he knew what that stuff could do when it catches fire and melts and becomes unstable, he would have got everybody out of there, as far away as we could get,” Muska said.
That’s what happened when the El Dorado Chemical facility in Bryan caught fire in 2009 and East Texas Ag Supply in Athens burned in 2014. In the latter case, the fire chief, seeing “the enormous scope of the fire and possibility of detonation of [ammonium nitrate] in the engulfed building,” told his firefighters to pull back, ordered evacuations within a five-block perimeter, and let the place burn to the ground, the Chemical Safety Board reported. No one was injured.
The West firefighters were doomed, through no fault of their own, by their lack of knowledge. On a 103-degree day last summer, three of them — Muska, Robby Payne and pharmacist Kirk Wines — sat in a conference room at the rebuilt West Rest Haven nursing home and talked about the trauma their town had endured. The original nursing home, 600 feet from West Fertilizer, was gutted by the blast. Seventy-two of the 130 residents were injured by flying glass and other debris.
One resident died of a heart attack that night; the safety board counted his death among the 15 it blamed on the explosion. Within two months, another 14 residents died — an unusually high number, the board reported. Payne, president of the nursing home’s board of directors, believes this is not a coincidence.
Payne, a top-flight high jumper at Baylor University in his day, owns Aderhold Funeral Home in West and said he feels fine physically. His memory blackout spared him from the post-traumatic stress disorder that afflicted others in town.
Wines doesn’t have that luxury. He remembers that April night in excruciating detail: how, after donning his gear, he ran toward the fire, only to drop his gloves. How, as he turned back to pick them up, the place ignited and sent debris flying. How he felt no concussion and somehow remained upright. “I just recall standing there, watching. It seemed like everything was in slow motion.”
After Wines grasped what had happened, he saw one firefighter stumbling toward him, covered in white dust, another with blood dribbling from his ears. A third lay lifeless on a stretcher. Wines couldn’t go to church for almost a year afterward without crying. He gets emotional still when he describes how people went out of their way to help after the blast — sending money to his pharmacy, for example, to pay for others’ prescriptions.
Wines bristles when the subject of arson is raised. The ATF, he believes, “had to come up with something” after spending three years and $2 million on its investigation.
“I don’t blame anybody” for what happened at West Fertilizer, Wines said. “I think it’s a terrible accident. I think the firemen did their jobs.”
Muska, meanwhile, has presided over the town’s rebirth. Nearly all the demolished houses have been rebuilt, he said. The high school, junior high, and intermediate school have been combined on a single campus. The city has spent $12 million on infrastructure repair and replacement — streets, water, and sewer lines, a park. A memorial to the blast victims was dedicated last year.
“The people here in this area are always going to remember,” Muska said.
His worry is that the rest of the country won’t.
Public Integrity reporter Rachel Leven contributed to this story.
This story was published in partnership between Grist, the Center for Public Integrity — a nonprofit, nonpartisan newsroom that investigates betrayals of public trust — and The World, a radio program that crosses borders and time zones to bring home the stories that matter.Print