Chemical Safety: Actions Needed to Improve Federal Oversight of Facilities with Ammonium Nitrate
Published: 2014-05-19T00:00:00

Fast Facts:

Highlights:
section_title: Why GAO Did This Study
paragraphs: In April 2013, about 30 tons of ammonium nitrate fertilizer detonated during a fire at a facility in West, Texas, killing at least 14 people and damaging nearby schools, homes, and a nursing home. This incident raised concerns about the risks posed by similar facilities across the country. OSHA and EPA play a central role in protecting workers and communities from chemical accidents, and DHS administers a chemical facility security program. GAO was asked to examine oversight of ammonium nitrate facilities in the United States and other countries. This report addresses (1) how many facilities have ammonium nitrate in the United States, (2) how OSHA and EPA regulate and oversee facilities that have ammonium nitrate, and (3) what approaches selected other countries have adopted for regulating and overseeing facilities with ammonium nitrate. GAO analyzed available federal data and data from selected states with high use of ammonium nitrate; reviewed federal laws and regulations; and interviewed government officials, chemical safety experts, and industry representatives in the United States and selected countries.
section_title: What GAO Found
paragraphs: Federal data provide insight into the number of facilities in the United States with ammonium nitrate but do not provide a complete picture because of reporting exemptions and other data limitations. The Occupational Safety and Health Administration (OSHA) and the Environmental Protection Agency (EPA) do not require facilities to report their ammonium nitrate holdings. The Department of Homeland Security (DHS) requires facilities with certain quantities of ammonium nitrate to report their holdings for security purposes. While the total number of facilities in the United States with ammonium nitrate is unknown, as of August 2013, at least 1,300 facilities in 47 states reported to DHS that they had reportable quantities of ammonium nitrate. Federal law also requires certain facilities to report their ammonium nitrate holdings to state and local authorities for emergency planning purposes, but these data are not routinely shared with federal agencies. According to EPA, states are not required to report these data to federal agencies, and each state determines how to share its data. As part of an Executive Order on Improving Chemical Facility Safety and Security issued in August 2013, federal agencies are exploring options for improving data sharing, but this work is not yet complete.
OSHA and EPA provide limited oversight of facilities that have ammonium nitrate. OSHA's regulations include provisions for the storage of ammonium nitrate, but the agency has done little outreach to increase awareness of these regulations within the fertilizer industry, a primary user. In addition, the regulations have not been significantly revised since 1971 and allow storage of ammonium nitrate in wooden buildings, which could increase the risk of fire and explosion. Other OSHA and EPA chemical safety regulations—which require facilities to complete hazard assessments, use procedures to prevent and respond to accidents, and conduct routine compliance audits—do not apply to ammonium nitrate. Furthermore, although OSHA targets worksites in certain industries for inspection, its inspection programs do not target facilities with ammonium nitrate and, according to OSHA officials, information on these facilities is not available to them to use for targeting the facilities. International chemical safety guidance suggests authorities should provide facilities information on how regulatory requirements can be met and periodically inspect them.
GAO reviewed approaches to overseeing facilities with ammonium nitrate in Canada, France, Germany, and the United Kingdom, selected in part based on recommendations from chemical safety experts. According to foreign officials and government documents, these countries require facilities with specified quantities of ammonium nitrate to assess its risk and develop plans or policies to prevent chemical accidents. For example, Canadian officials said facilities with 22 tons or more of ammonium nitrate are required to complete a risk assessment and an emergency plan. Some countries' storage requirements also restrict the use of wood to store ammonium nitrate. For example, officials told GAO that France restricted the use of wood for storing ammonium nitrate fertilizer after several incidents involving ammonium nitrate fertilizer, and German officials told GAO that certain ammonium nitrate and ammonium nitrate-based preparations must be separated from combustible materials by brick or concrete walls.
section_title: What GAO Recommends
paragraphs: GAO is recommending that federal agencies improve data sharing, OSHA and EPA consider revising their related regulations to cover ammonium nitrate, and OSHA conduct outreach to the fertilizer industry and target high risk facilities for inspection. DHS, EPA, and OSHA agreed with GAO's recommendations and suggested technical changes, which GAO incorporated as appropriate.

section_title: Letter
paragraphs: On April 17, 2013, about 30 tons of ammonium nitrate fertilizer detonated  during a fire at a fertilizer storage and distribution facility in West, Texas,  killing at least 14 people and injuring more than 200 others. The explosion  severely damaged or destroyed nearly 200 homes, three nearby schools,  a nursing home, and an apartment complex. While ammonium nitrate is  widely used in agriculture, mining, and other industries, the Texas tragedy  underscores the need for great care in its storage and handling. Today,  significant quantities of ammonium nitrate fertilizer are stored in facilities  across the United States. In 2012, use of ammonium nitrate fertilizer in  the United States amounted to 853,093 tons. In 2010, U.S. companies  reported producing about 7.5 million tons of ammonium nitrate. The total  number and location of facilities in the United States in which ammonium  nitrate is stored, however, is not known.
In response to the explosion in West, Texas, President Obama issued an  Executive Order on August 1, 2013 designed to improve the safety and  security of chemical facilities and reduce the risks that hazardous  chemicals pose to workers and communities. The order, which includes  a focus on ammonium nitrate, established a federal working group to  improve federal coordination with state and local partners; enhance  federal agency coordination and information sharing; modernize policies,  regulations, and standards; and work with stakeholders to identify best  practices.
Several federal agencies are involved in regulating facilities with  hazardous chemicals, but the Department of Labor’s Occupational Safety  and Health Administration (OSHA) and the Environmental Protection  Agency (EPA) play central roles in protecting workers and communities  from chemical accidents at facilities. In addition, the Department of  Homeland Security (DHS) administers a chemical facility security  program, the Chemical Facility Anti-Terrorism Standards (CFATS)  program, which requires certain chemical facilities to report information to  DHS and, in some instances, take additional steps to secure their  facilities. You asked us to examine federal oversight of facilities with  ammonium nitrate in the United States and approaches used by other  countries. For this review we addressed the following questions: (1) How  many facilities in the United States have ammonium nitrate? (2) How do  OSHA and EPA regulate and oversee facilities that have ammonium  nitrate? (3) What approaches have selected other countries adopted for  regulating and overseeing facilities with ammonium nitrate?
To answer question 1, we analyzed data from DHS’s CFATS program  and other sources on the number and types of facilities that reported  having ammonium nitrate as of August 2013 and documented the  limitations of the data. To assess the reliability of the CFATS data, we  reviewed agency documentation, interviewed DHS officials, and  performed electronic testing of required data elements. We also  requested state data on facilities that reported having ammonium nitrate  from four states with high ammonium nitrate fertilizer consumption– Alabama, Missouri, Tennessee, and Texas–and received data from  Texas and Alabama. We compared data collected by DHS to other data  sources, including chemical inventory data from Alabama and Texas,  which were identified as leading users of ammonium nitrate fertilizer, and  trade data collected by DHS’s Customs and Border Protection agency on  U.S. imports and exports of ammonium nitrate. Our primary purpose in  comparing CFATS data with data from other sources was to determine  whether the CFATS data represent a complete count of facilities with  ammonium nitrate. We determined that the CFATS data were sufficiently  reliable for purposes of providing the number and type of facilities that  reported having ammonium nitrate at levels that met thresholds for  reporting under CFATS. As we discuss later in this report, certain  limitations of the data did not allow us to determine whether all facilities  that should have reported to DHS actually did so.
For question 2, we reviewed relevant federal laws and regulations,  focusing on OSHA’s and EPA’s regulations, including the types of  facilities covered by the regulations. We also interviewed federal agency  officials regarding their oversight practices.
To describe the approaches selected other countries have adopted for  regulating and overseeing facilities with ammonium nitrate, we reviewed  approaches used by selected member countries of the European Union  (EU) and the Organisation for Economic Co-operation and Development  (OECD): Canada, France, Germany, and the United Kingdom. To select  these four countries, we considered the extent to which the countries use  ammonium nitrate fertilizer, the results of our literature search, and  recommendations from our interviews with chemical safety experts. There  are key differences between the United States and these other countries,  including the size of the country, the size of the agriculture industry, and  the amount of ammonium nitrate used. We interviewed government  officials from the EU and the countries selected and reviewed documents  provided by the officials. We did not conduct an independent legal  analysis to verify the information provided about the laws, regulations, or  policies of the foreign countries selected for this study. We also  interviewed U.S. and international fertilizer industry associations,  chemical safety experts, and federal officials to obtain their views on U.S.  chemical safety regulations and oversight, and the practices of the  selected countries.
We conducted this performance audit from June 2013 to May 2014 in  accordance with generally accepted government auditing standards.  Those standards require that we plan and perform the audit to obtain  sufficient, appropriate evidence to provide a reasonable basis for our  findings and conclusions based on our audit objectives. We believe that  the evidence obtained provides a reasonable basis for our findings and  conclusions based on our audit objectives.
subsections: section_title: Background
subsections: section_title: Use and Hazards of Ammonium Nitrate
paragraphs: Ammonium nitrate products are manufactured and sold in various forms,  depending upon their use. For example, ammonium nitrate fertilizer may  be produced and sold in liquid form or as solid granules. According to  The Fertilizer Institute, solid ammonium nitrate fertilizer is used heavily by  farmers in Alabama, Missouri, Tennessee, and Texas primarily on  pastureland, hay, fruit, and vegetable crops. In addition to its agricultural  benefits, ammonium nitrate can be mixed with fuel oil or other additives  and used by the mining and construction industries as an explosive for  blasting.
While ammonium nitrate can increase agricultural productivity, use of this  chemical poses a safety and health risk because it can intensify a fire  and, under certain circumstances, explode. Ammonium nitrate by itself  does not burn, but it increases the risk of fire if it comes in contact with  combustible materials. Ammonium nitrate that is stored in a confined  space and reaches high temperatures can explode. An explosion is  more likely to occur if ammonium nitrate is contaminated by certain  materials, such as fuel oil, or if it is stored in large stacks.
Because of ammonium nitrate’s potential to facilitate an explosion,  facilities storing ammonium nitrate may pose a security threat in part  because it can be used to make weapons. Ammonium nitrate fertilizer  has been used by domestic and international terrorists to make explosive  devices. For example, on April 19, 1995, ammonium nitrate fertilizer— mixed with fuel oil—was used by a domestic terrorist to blow up a federal  building in Oklahoma City, Oklahoma. The explosion killed 168 people  and injured hundreds more.
Ammonium nitrate has been involved in several major chemical accidents  over the past century, including explosions in the United States and  Europe. In addition to killing at least 14 people and injuring more than 200  others, the explosion in West, Texas severely damaged or destroyed  nearly 200 homes; an apartment complex; and three schools that were, at  the time, unoccupied (see fig. 1). Prior to that incident, an explosion in  1994 involving ammonium nitrate at a factory in Port Neal, Iowa killed four  workers and injured 18 people. In 1947, explosions aboard two ships  holding thousands of tons of ammonium nitrate fertilizer killed more than  500 people, injured approximately 3,500, and devastated large areas of  industrial and residential buildings in Texas City, Texas. In Europe,  accidents involving ammonium nitrate have occurred in Germany,  Belgium, and France. A 1921 accident in Germany and one in Belgium in  1942 caused hundreds of deaths after explosives were used to break up  piles of hundreds of tons of ammonium nitrate, resulting in large scale  detonations. In France, a ship carrying more than 3,000 tons of  ammonium nitrate exploded in 1947, a few months after the Texas City  disaster, after pressurized steam was injected into the storage area in an  attempt to put out a fire. In 2001, an explosion at a fertilizer plant in  Toulouse, France involving between 22 and132 tons of ammonium nitrate  resulted in 30 deaths, thousands of injuries requiring hospitalization, and  widespread property damage. Past accidents also indicate that smaller  quantities of ammonium nitrate can cause substantial damage. For  example, in 2003, an explosion of less than 6 tons of ammonium nitrate in  a barn in rural France injured 23 people and caused significant property  damage.
section_title: Federal Agencies’ Responsibilities for Promoting Chemical Safety and Security
paragraphs: OSHA and EPA play key roles in protecting the public from the effects of  chemical accidents, with EPA focusing on the environment and public  health and OSHA focusing on worker safety and health. Under the  Occupational Safety and Health Act of 1970 (OSH Act), OSHA is the  federal agency responsible for setting and enforcing regulations to protect  workers from hazards in the workplace, including exposure to hazardous  chemicals. In addition, the Clean Air Act Amendments of 1990  designated roles for both OSHA and EPA with respect to preventing  chemical accidents and preparing for the consequences of chemical  accidents. In response to requirements in this act, OSHA issued  Process Safety Management (PSM) regulations in 1992 to protect  workers engaged in processes that involve certain highly hazardous  chemicals, and EPA issued Risk Management Program (RMP)  regulations in 1996 to require facilities handling particular chemicals to  plan how to prevent and address chemical accidents. The PSM and  RMP regulations each apply to processes involving a specified list of  chemicals above threshold quantities, and require covered facilities to  take certain steps to prevent and prepare for chemical accidents.  However, neither OSHA’s PSM regulations nor EPA’s RMP regulations  cover ammonium nitrate.
The Emergency Planning and Community Right-to-Know Act of 1986  (EPCRA) establishes authorities for emergency planning and  preparedness and emergency release notification reporting, among other  things. Under section 312 of EPCRA and EPA regulations, facilities with  certain hazardous chemicals in amounts at or above threshold levels— including ammonium nitrate in some circumstances—are required to  annually submit chemical inventory forms to state and local authorities to  help emergency response officials prepare for and respond to chemical  incidents.
For purposes of enhancing chemical facility security, the Department of  Homeland Security (DHS) Chemical Facility Anti-Terrorism Standards  (CFATS) program requires facilities possessing certain chemicals at or  above threshold quantities–including some types of ammonium nitrate–to  submit reports to DHS with information about the facility and the regulated  chemicals present on site. Among other things, DHS collects information  on the quantities of certain hazardous chemicals held at facilities, the  location of the facilities, and their industry codes. DHS set different  threshold quantities for reporting based on the type of ammonium nitrate  and the type of security risk presented (see table 1).
Not all facilities with ammonium nitrate, however, are required to file  CFATS reports with DHS. First, facilities are only required to report if they  are holding amounts equal to or greater than threshold quantities of  specific types of ammonium nitrate. Also, DHS does not require certain  agricultural producers to report their chemical holdings to DHS. In  addition, DHS’s reporting threshold for ammonium nitrate fertilizer only  applies to quantities held in transportable containers such as cylinders,  bulk bags, bottles (inside or outside of boxes), cargo tanks, and tank  cars. Finally, there are several statutory exemptions to CFATS  requirements. Specifically, CFATS does not apply to public water systems  or treatment works, any facility that is owned or operated by the  Department of Defense or the Department of Energy, facilities regulated  by the Nuclear Regulatory Commission, or facilities covered by the  Maritime Transportation Security Act of 2002 administered by the Coast  Guard.
Other federal agencies regulate different aspects of the use of hazardous  chemicals. For example, the Department of Transportation regulates the  transport of hazardous materials, the Coast Guard inspects containers of  hazardous materials at ports and waterways, and the Bureau of Alcohol,  Tobacco, Firearms and Explosives (ATF) in the Department of Justice  regulates the manufacture, distribution, and storage of explosive  materials, including blasting agents and other explosive materials  containing ammonium nitrate.
section_title: State and Local Government Responsibilities for Promoting Chemical Safety
paragraphs: State and local government agencies are also involved in regulating  hazardous chemical facilities under federal laws and their own state or  local laws. Federal laws may authorize or assign state and local  governments certain roles and responsibilities for overseeing chemical  facilities. For example, as permitted by the OSH Act, OSHA has approved  state plans that authorize about half the states to operate their own  occupational safety and health programs. As a result, private sector  workplaces in 21 states and Puerto Rico are regulated and inspected by  state occupational safety and health agencies rather than OSHA.  Similarly, EPA has delegated its authority to implement and enforce the  Risk Management Program to nine states and five counties. As  previously mentioned, both state and local governments play a role in  implementing EPCRA, which requires covered facilities to report basic  information about their hazardous chemical inventories to certain state  and local authorities, including estimates of the amounts of chemicals  present at facilities.
In addition, state and local governments may establish and enforce their  own laws, regulations, or ordinances to protect the public from chemical  accidents. For example, state and local governments may adopt and  enforce fire codes or zoning laws that specify how far chemical facilities  must be located from residential areas.
section_title: Executive Order on Improving Chemical Facility Safety and Security
paragraphs: The Executive Order issued on August 1, 2013 established a Chemical  Facility Safety and Security Working Group co-chaired by the Secretary of  Homeland Security, the Administrator of EPA, and the Secretary of Labor.  The Executive Order includes directives for the working group to: improve  operational coordination with state and local partners; enhance federal  agency coordination and information sharing; modernize policies,  regulations, and standards; and work with stakeholders to identify best  practices. The order includes tasks focused specifically on ammonium  nitrate. Specifically, it directs the Secretaries of Homeland Security,  Labor, and Agriculture to develop a list of potential regulatory and  legislative proposals to improve the safe and secure storage, handling,  and sale of ammonium nitrate. In addition, the Department of Labor and  EPA are directed to review the chemical hazards covered by the RMP  and PSM regulations and determine whether they should be expanded to  address additional hazards.
section_title: OECD’s Guidance on Chemical Safety
paragraphs: The Organisation for Economic Co-operation and Development (OECD),  an intergovernmental organization with 34 member countries, issued  guidance in 2003 on the prevention of, preparedness for, and response to  chemical accidents. This publication was developed with other  international organizations active in the area of chemical accident safety,  such as the World Health Organization. The document—OECD Guiding  Principles for Chemical Accident Prevention, Preparedness and  Response—includes detailed guidance for industry, public authorities,  and the public on how they can help prevent chemical accidents and  better respond when accidents occur.
section_title: Over 1,300 Facilities in 47 States Reported Having Ammonium Nitrate, but Data Limitations Prevent Obtaining a Complete Count of Facilities
paragraphs: The total number of facilities in the United States with ammonium nitrate  is not known because of the different reporting criteria used by different  government agencies, reporting exemptions, and other data limitations.  While the total number is unknown, over 1,300 facilities reported having  ammonium nitrate to DHS. DHS’s data, however, do not include all  facilities that work with ammonium nitrate, in part because some facilities,  such as farms, currently do not have to report to DHS and, according to  DHS officials, other facilities that are required to report may fail to do so.
subsections: section_title: DHS Data List Over 1,300 Facilities in 47 States with Ammonium Nitrate
paragraphs: As of August 2013, 1,345 facilities located in 47 states reported to DHS  under CFATS that they had ammonium nitrate. The facilities that reported  to DHS as having reportable quantities of ammonium nitrate were most  often engaged in supplying and supporting the agriculture and mining  industries. Many of these facilities were concentrated in the South. About  half of these facilities were located in six states: Alabama, Georgia,  Kentucky, Missouri, Tennessee, and Texas. Table 2 shows the number of  facilities that reported to DHS that they had ammonium nitrate and the  number of states in which they were located.
section_title: State Data and Federal Trade Data Suggest That the Total Number of Facilities with Ammonium Nitrate is Greater Than Those That Report to DHS
paragraphs: Our review of additional state data, including EPRCA data, from Texas  and Alabama, which have different reporting criteria than CFATS,  indicated that there are more facilities with ammonium nitrate than those  that report to DHS. We compared the data they provided to the data on  facilities that reported to DHS under CFATS. In these two states, we  found that the data from each of the sources provided to us differed and  that no single count of such facilities, whether from the state or DHS,  represented a comprehensive picture of facilities with ammonium nitrate.
For Texas, we reviewed three sources of data on facilities that have  ammonium nitrate: (1) EPCRA data from the Texas Department of State  Health Services; (2) a list of facilities that registered with the Office of the  Texas State Chemist as having plans to produce, store, or sell  ammonium nitrate; and (3) DHS’s CFATS data. We compared data  from all three of these sources and found 189 facilities that reported  having ammonium nitrate (see fig. 2). Of these 189 facilities, 52 filed  CFATS reports with DHS. Data were not readily available to determine  whether the remaining facilities were required to file CFATS reports. DHS  officials told us the agency has begun an effort to obtain lists of chemical  facilities the states have compiled and compare them with its CFATS data  to identify facilities that should have filed CFATS reports but did not. This  effort is still under way. As shown in figure 2, 17 of the 189 facilities in  Texas were listed in all three data sources.
For Alabama, we reviewed data from two sources on facilities that  reported having ammonium nitrate: (1) EPCRA data from Alabama’s  Department of Environmental Management, and (2) DHS’s CFATS data.  From these two sources, we found 91 facilities that reported having  ammonium nitrate— 57 that filed EPCRA reports with the state  Department of Environmental Management and 71 that filed CFATS  reports with DHS. Thirty-seven of the facilities filed reports with both the  state and DHS. (See fig. 3.)
Our analysis of federal trade data collected by DHS’s Customs and  Border Protection agency also suggests that a greater number of facilities  have ammonium nitrate than those that reported to DHS under the  CFATS program. Using the data from the Customs and Border  Protection agency, we identified 205 facilities that imported ammonium  nitrate products and 81 facilities that exported ammonium nitrate products  in fiscal year 2013. The majority of these facilities reported importing or  exporting mixtures of ammonium nitrate and calcium carbonate or  mixtures of urea and ammonium nitrate. Eight of these facilities filed  CFATS reports with DHS. Moreover, we found about 100 facilities that  imported or exported a form of ammonium nitrate that may be subject to  DHS’s CFATS requirements for reporting quantities over 2,000 pounds  but did not file a report. These facilities, however, may not be required to  file CFATS reports. For example, they may meet one of the statutory  exemptions, or the composition of their ammonium nitrate (or their  ammonium nitrate mixture) may not trigger the reporting requirements.  Data were not readily available to determine whether they met all of  DHS’s reporting requirements for the CFATS program. In addition,  according to DHS officials, other data limitations could explain some of  the differences between the CFATS data and the federal trade data. For  example, facilities may submit reports to the different agencies using  different names and addresses. According to DHS, different people in the  facility may prepare the different reports; the facility may define the  perimeters of each site differently; or the corporate structure or  nomenclature may have changed from the time one report was submitted  to the next reporting period.
section_title: Differences in Reporting Criteria, Including Exemptions, and Facilities’ Failure to File Required Reports Also Prevent Full Identification of Facilities with Ammonium Nitrate
paragraphs: The total number of facilities with ammonium nitrate is also difficult to  determine because of the variation in reporting criteria, including  exemptions for some facilities from reporting to either their state or to  DHS. For example, farmers could be exempt from reporting under both  EPCRA and CFATS because EPCRA’s reporting requirements do not  apply to substances used in routine agricultural operations and DHS does  not currently require certain agricultural producers to report their chemical  holdings to DHS. In addition, DHS’s reporting threshold for ammonium  nitrate fertilizer only applies to quantities held in transportable containers  such as cylinders, bulk bags, bottles (inside or outside of boxes), cargo  tanks, and tank cars. Also, EPCRA does not require retailers to report  fertilizer held for sale to the ultimate customer. However, an August 2013  chemical advisory on ammonium nitrate issued jointly by EPA, OSHA,  and ATF clarified that EPCRA requires fertilizer distributors to report  ammonium nitrate that is blended or mixed with other chemicals on site.  In addition, some facilities may not report to DHS or their state because  they have amounts of ammonium nitrate that are below the applicable  reporting thresholds.
Some facilities may not be included in either DHS’s or states’ data  because they fail to submit their required reports, but the magnitude of  underreporting is not known. DHS officials acknowledged that some  facilities fail to file the required forms. The facility in West, Texas had not  filed a CFATS report to DHS but, in 2012, this facility filed an EPRCA  form with the state, reporting that it had 270 tons of ammonium nitrate.  According to DHS officials, the agency does not know with certainty  whether the West, Texas facility should have reported its ammonium  nitrate to DHS because the agency did not visit the facility after the  explosion and it does not know the manner in which the facility held its  ammonium nitrate prior to the explosion. Following the explosion at the  facility in West, Texas, DHS obtained data from the state of Texas and  compared the state data to the facilities that reported to DHS. As a result  of this data matching effort, DHS sent out 106 letters to other potentially  noncompliant facilities in Texas. According to DHS, many of the Texas  facilities that received the letter said they do not actually possess  ammonium nitrate or do not meet the criteria to require reporting under  CFATS. DHS has used EPA’s Risk Management Program (RMP)  database to try and identify such facilities holding other chemicals, but it  cannot use the RMP database to identify all facilities with ammonium  nitrate because ammonium nitrate is not covered by EPA’s RMP  regulations. In addition, DHS officials told us the agency is in the process  of comparing its list of facilities that reported to DHS under the CFATS  program to ATF’s list of facilities that have federal explosives licenses and  permits to identify potentially noncompliant facilities, but this effort had not  been completed at the time of our review.
section_title: OSHA Lacks Access to Data on Facilities That Have Ammonium Nitrate
paragraphs: OSHA has limited access to data collected by other agencies to use in  identifying facilities with ammonium nitrate. DHS does not currently share  its CFATS data with OSHA, although DHS officials told us they were not  aware of anything prohibiting DHS from doing so. While EPA shares data  from its RMP with OSHA on a quarterly basis, the data do not include  information on ammonium nitrate because ammonium nitrate is not  covered by EPA’s RMP regulations. As previously discussed, under  section 312 of EPCRA, facilities are required to annually report  information to state and local authorities on the types and quantities of  certain hazardous chemicals present at their facilities, which may include  ammonium nitrate. Facilities that possess reportable quantities of  ammonium nitrate submit this information electronically or on paper  forms, and the state and local entities maintain copies of these forms.  However, according to agency officials, the EPCRA data are not shared  directly with federal agencies, including OSHA, EPA, or DHS (see fig. 4).  EPA officials, however, noted that EPCRA is primarily intended to provide  information to state and local officials, not to other federal agencies. Any  person may submit written requests to the designated state or local  authority for information on individual facilities that may have ammonium  nitrate, but lists of all facilities in a state that have submitted these data,  including those that reported having ammonium nitrate, are not publicly  available. In certain states we contacted, officials indicated that data on  individual facilities could be requested from the state, but the requester  would have to request data on specific facilities to obtain information on  the chemicals they hold. OSHA officials cited the lack of access to data  on facilities with ammonium nitrate as a reason they would have difficulty  designing an inspection program to target such facilities.
The University of Texas at Dallas has a database (called E-Plan) that  contains EPCRA data from over half of the states for the 2012 reporting  year, but federal agencies have made limited use of it. University staff  originally developed the E-Plan database in 2000 with funding from EPA  to facilitate EPCRA reporting and provide first responders rapid access to  information on chemical facilities in emergency situations. In many local  areas, first responders and emergency services personnel can use the E- Plan data when they prepare for and respond to emergencies such as  fires. According to E-Plan administrators, OSHA staff helped develop the  database, but currently OSHA does not use E-Plan. EPA staff told us that  some EPA regional offices have used the E-Plan database to assess  compliance with the agency’s RMP reporting requirements. DHS officials  told us the agency does not use E-Plan data to assess compliance with  CFATS requirements. DHS officials also explained that, while the  database could contain useful information, it is incomplete. Some states  do not submit data to E-Plan at all, and other states’ data are incomplete.  In addition, participation in E-Plan is voluntary and, even among those  states that participate, some states do not choose to allow their E-Plan  data to be shared with federal agencies.
section_title: Ongoing Efforts to Improve Data Sharing on Chemical Facilities
paragraphs: The Chemical Facility Safety and Security Working Group established by  the August 2013 Executive Order has begun its efforts to develop  proposals for improving information sharing, but this work has not been  completed. The working group has held listening sessions throughout the  country seeking input from interested parties on options for making  improvements in chemical safety and security. It also has launched a pilot  program in New York and New Jersey aimed at improving access to data  on chemical facilities for federal, state, local, and tribal governments. In  addition, the working group is evaluating how federal agencies can work  with states to enhance the states’ roles as information sharing  organizations, including options for sharing RMP, CFATS, and EPCRA  data. Finally, it is exploring ways for federal and state agencies to share  information and exchange data to, among other things, identify chemical  facilities that are not in compliance with safety and security requirements.  For example, DHS and EPA are comparing their CFATS and RMP data to  determine if the CFATS data include facilities that should also have  reported under the RMP. As a result, EPA has begun sending notification  letters to facilities requesting information to help determine if the facility is  subject to RMP requirements. Because the RMP regulations do not  currently cover ammonium nitrate, however, this strategy would not be  useful for identifying facilities that have ammonium nitrate. The federal  working group is also sharing information to, among other things, identify  whether additional facilities have failed to report under CFATS and is  exploring whether EPA software offered to states to facilitate EPCRA  reporting could also provide a vehicle to enhance access to the reports  while meeting security objectives.
section_title: OSHA Has Not Focused Its Enforcement Efforts on Ammonium Nitrate and EPA Has Not Regulated It as a Hazardous Material
paragraphs: OSHA has regulations for the storage of ammonium nitrate, but the  agency has not focused its enforcement resources on the use of  ammonium nitrate by the fertilizer industry, which is a primary user. EPA,  on the other hand, has regulations requiring risk management planning by  facilities that have certain hazardous chemicals, but these regulations do  not apply to ammonium nitrate.
subsections: section_title: OSHA’s Regulations for Explosives and Blasting Agents List Substantive Requirements for the Storage of Ammonium Nitrate
paragraphs: OSHA’s Explosives and Blasting Agents regulations—issued in 1971— include provisions for the storage of both explosives grade and fertilizer  grade ammonium nitrate in quantities of 1,000 pounds or more. OSHA  based these regulations on two 1970 consensus standards developed by  the National Fire Protection Association (NFPA). Few significant  changes have been made to these regulations since they were issued,  although the National Fire Protection Association periodically reviews and  updates its standards. OSHA’s regulations include requirements that  could reduce the fire and explosion hazards associated with ammonium  nitrate, such as required fire protection measures, limits on stack size,  and requirements related to separating ammonium nitrate from  combustible and other contaminating materials. However, the regulations  do not categorically prohibit employers from storing ammonium nitrate in  wooden bins and buildings. In addition, if the facilities were in existence  at the time the regulations were issued in 1971, OSHA’s regulations allow  the use of storage buildings not in strict conformity with the regulations if  such use does not constitute a hazard to life. Some of the provisions of  OSHA’s ammonium nitrate storage regulations are described in table 3.
Recently, OSHA, EPA, and ATF jointly issued a chemical advisory that  recommends that facilities store ammonium nitrate in non-combustible  buildings. Similarly, following the explosion in West, Texas, the National  Fire Protection Association is considering changes to its ammonium  nitrate storage provisions, which are part of its hazardous materials  consensus standard, including restricting the use of wood to store  ammonium nitrate.
In addition to storage requirements, OSHA’s Hazard Communication  regulations require that employers whose workers are exposed to  hazardous chemicals, including ammonium nitrate, inform their workers of  the dangers and train them to handle the materials appropriately.  Employers are required to use labels, training, and safety data sheets to  inform workers of chemical hazards in the workplace. Safety data  sheets are written documents with details on the hazards associated with  each chemical, measures workers can take to protect themselves, actions  workers should take in case of an emergency, and safety precautions for  handling and storing the chemical.
section_title: OSHA Has Conducted Little Outreach to the Fertilizer Industry to Increase Awareness of Its Ammonium Nitrate Storage Regulations
paragraphs: Until the explosion in West, Texas, OSHA had not reached out to the  fertilizer industry to inform its members of OSHA’s requirements for the  storage of ammonium nitrate fertilizer. An OSHA official told us the  agency has not traditionally informed the fertilizer industry about these  regulations. However, another OSHA official said agency officials met  with industry representatives after the explosion at the facility in West,  Texas and, based on that meeting, concluded that the fertilizer industry is  “well aware” of the agency’s storage regulations. OECD’s Guiding  Principles for Chemical Accident Prevention, Preparedness, and  Response recommend that public authorities provide clear, easy-to- understand guidance to facilities on how regulatory objectives and  requirements can be met.
OSHA recently published information about how the agency’s Explosives  and Blasting Agents regulations apply to ammonium nitrate fertilizer. The  agency provides employers with training, technical assistance, and  information through its website on a variety of safety and health topics.  Recently, OSHA updated its website to refer to its storage regulations for  ammonium nitrate fertilizer. The August 2013 chemical advisory contains  information on OSHA’s ammonium nitrate storage regulations, stating that  OSHA’s Explosives and Blasting Agents regulations contain requirements  for the storage of all grades of ammonium nitrate, including fertilizer grade  ammonium nitrate. In addition, in February 2014, OSHA announced that  the agency is working with the fertilizer industry to remind employers of  the importance of safely storing and handling ammonium nitrate. OSHA  published a letter on its website that provides employers with legal  requirements and best practice recommendations for safely storing and  handling ammonium nitrate. In the letter, OSHA states that the agency  will enforce the requirements of 29 C.F.R. § 1910.109(i) for storage of  ammonium nitrate, including at facilities in non-explosives industries.  According to the announcement, fertilizer industry associations will share  the letter with facilities across the country.
Fertilizer industry representatives we interviewed said that, prior to the  explosion in West, Texas, they did not know that OSHA’s ammonium  nitrate storage regulations applied to the fertilizer industry, and they  suggested that OSHA reach out to the fertilizer industry to help prevent  another incident. Industry representatives explained that their  understanding was based on a proposed rule published by OSHA in the  Federal Register on April 13, 2007, which proposed revisions to the  Explosives and Blasting Agents regulation. In that notice, OSHA  proposed a change to the ammonium nitrate storage requirements “to  clarify that OSHA intends the requirements to apply to ammonium nitrate  that will be used in the manufacture of explosives.” Although this  proposed rule was never finalized, the industry representatives told us  they relied on this statement to mean OSHA did not intend the storage  requirements to apply to ammonium nitrate fertilizer.
In addition, we reviewed the safety data sheets developed by four U.S.  producers of solid ammonium nitrate fertilizer and found that only one  company’s sheet listed OSHA’s Explosives and Blasting Agents  regulations as applicable to the storage and handling of ammonium  nitrate fertilizer. An industry representative who assists agricultural  retailers with regulatory compliance said he reviewed the regulatory  information sections in his clients’ safety data sheets for ammonium  nitrate fertilizer and none of them referred to OSHA’s Explosives and  Blasting Agents regulations. A representative from one national fertilizer  industry association said it would be helpful if OSHA took additional steps  to explain its interpretation of the applicable requirements and reach out  to the fertilizer industry so that affected companies are better informed. A  representative from another national agricultural industry group  suggested that OSHA develop and disseminate a compliance assistance  tool or checklist to ensure that facilities are aware of and in compliance  with the applicable regulations.
The fertilizer industry is developing a voluntary program called  Responsible Ag to promote compliance with federal regulations among  fertilizer facilities. Officials from the Fertilizer Institute and the Agricultural  Retailers Association told us they plan to consolidate federal regulatory  requirements for fertilizer retail facilities into one comprehensive checklist  and provide third party audits to retailers based on a checklist they have  developed. In addition, officials with the Asmark Institute, a nonprofit  resource center for agricultural retailers in the United States, said they  developed their own compliance assessment tool for agricultural retailers.  The Fertilizer Institute and the Agricultural Retailers Association selected  the Asmark Institute to develop a database that will include information on  audit reports and scores from the third party audits. This initiative will be  modeled after a voluntary audit program in Minnesota for agricultural  retailers to help them improve compliance with federal and state  regulations. According to OSHA officials, OSHA has not been involved in  the development of this industry initiative.
section_title: OSHA Has No Program for Targeted Inspections of Facilities with Ammonium Nitrate
paragraphs: Although OSHA has a national enforcement program that targets certain  chemical facilities for inspection, this program does not systematically  cover facilities with ammonium nitrate. OECD chemical safety guidance  suggests public authorities periodically inspect the safety performance of  hazardous facilities. OSHA conducts inspections of worksites, as  authorized under the OSH Act. As part of its enforcement efforts, OSHA  randomly selects facilities for inspection as part of a national emphasis  program for chemical facilities it initiated in 2011. However, these  inspections are for facilities and chemicals covered under its Process  Safety Management (PSM) regulations, which do not include ammonium  nitrate. According to OSHA officials, facilities that blend and store  ammonium nitrate fertilizer fall outside the scope of this national  emphasis program. When we asked whether OSHA might expand its  national emphasis program to focus on ammonium nitrate fertilizer  facilities, officials said that the agency is not planning on targeting these  facilities, in part because OSHA has no means of identifying them.
In addition, OSHA is not likely to target facilities with ammonium nitrate  for inspection because of its limited resources, and because these  facilities often do not meet OSHA’s current inspection priorities. OSHA  conducts inspections with its own personnel and the number of  inspections OSHA and the states can perform each year is limited by the  size of their inspection workforce. According to OSHA officials, OSHA and  the states have about 2,200 inspectors who inspected about 1 percent of  the 8 million covered employers in fiscal year 2012. Among OSHA’s  highest priorities for inspecting worksites are responding to major  accidents and employee complaints. In fiscal year 2012, OSHA reported  that 44 percent of the agency’s inspections were unplanned inspections,  which include inspections initiated in response to an accident or  complaint. OSHA also targets certain industries for planned inspections  that have high rates of workplace injury and illness. For example, OSHA  reported that 55 percent of OSHA’s planned inspections in fiscal year  2012 were inspections of worksites in the construction industry.
OSHA has rarely issued citations for violations of its ammonium nitrate  storage regulations at fertilizer facilities. OSHA officials told us a citation  for a violation of the agency’s ammonium nitrate storage regulations was  issued as the result of an inspection of a fertilizer facility only once before  the explosion in West, Texas. In that case, OSHA inspected a Florida- based fertilizer manufacturer in 1997 in response to a complaint, and  cited the company for 30 violations, one of which was a violation of its  ammonium nitrate storage requirements. In addition, according to OSHA  officials, within the last 5 years, none of the 21 states that operate their  own safety and health programs have cited any employers for improper  storage or handling of ammonium nitrate.
section_title: OSHA Is Prohibited from Inspecting Some Facilities with Ammonium Nitrate That Have 10 or Fewer Employees
paragraphs: Under a provision regularly included in the annual appropriations act,  OSHA is prohibited from conducting planned safety inspections of small  employers—those with 10 or fewer employees—in certain low hazard  industries, as determined by their injury and illness rates. Although the  number of facilities exempted from OSHA inspections under this provision  is unclear, we found that, of the facilities that reported having ammonium  nitrate to DHS as of August 2013, 60 facilities—about 4 percent of the  1,345 facilities that reported to DHS— reported having 10 or fewer  employees and had an industry code with a lower than the average  workplace injury and illness rate (see table 4). As a result, according to  OSHA officials, this provision could have hindered the agency’s  enforcement of its ammonium nitrate storage regulations at these  facilities.
OSHA’s fiscal year 2015 budget request asks Congress to consider  amending OSHA’s appropriation language to allow the agency to perform  targeted inspections of small establishments that have the potential for  catastrophic incidents, such as those with processes covered by OSHA’s  PSM or EPA’s RMP regulations. In the budget request, OSHA states that  the current appropriations language limits the agency’s ability to conduct  inspections, and neither the number of workers in a company nor low  injury and illness rates is predictive of the potential for catastrophic  accidents that can damage whole communities.
section_title: Other OSHA and EPA Chemical Safety Regulations Do Not Apply to Facilities with Ammonium Nitrate
paragraphs: OSHA’s PSM regulations for chemical safety do not cover ammonium  nitrate. In response to a requirement in the Clean Air Act Amendments  of 1990, OSHA issued its PSM regulations in 1992 to help prevent  accidents involving highly hazardous chemicals, including toxic,  flammable, highly reactive, and explosive substances. These regulations  apply to processes involving listed chemicals in amounts at or above  threshold quantities. Employers subject to the PSM regulations are  required to take specified steps, which include evaluating the hazards  associated with the process, as well as developing and implementing  operating procedures, employee training, emergency action plans, and  compliance audits at least every 3 years, among other requirements.  Despite the hazards of ammonium nitrate, this chemical is not listed as  one of the chemicals subject to these regulations. OSHA officials told us  they did not know why ammonium nitrate was not included when the  regulation was first issued. According to the August 2013 chemical  advisory, although ammonium nitrate is not covered by the PSM  regulations, the production or use of ammonium nitrate may involve PSM- listed chemicals, and the manufacture of explosives, which may involve  ammonium nitrate, is covered by the regulations. In the late 1990s, OSHA  staff drafted a proposal for expanding PSM regulations to cover  ammonium nitrate and other reactive chemicals, but it was not reviewed  by agency policy officials and was never published in the Federal  Register for public comment.
In addition, retail facilities, which may include facilities that store and  blend fertilizer for direct sale to end users, are exempt from OSHA’s PSM  regulations. In the preamble to the final rule for the PSM regulations,  OSHA stated that retailers are not likely to store large quantities of  hazardous chemicals, and that a large chemical release would be  unlikely. While the facility in West, Texas stored large quantities of  anhydrous ammonia, a chemical covered by the PSM regulations, OSHA  officials told us that the PSM regulations would not apply to the facility  because it was a retail outlet.
In addition, other chemical safety regulations issued by EPA do not apply  to facilities with ammonium nitrate. EPA’s RMP regulations, issued in  1996 in response to a provision of the Clean Air Act Amendments of  1990, require covered chemical facilities to develop and implement a risk  management program, but ammonium nitrate is not included on the list of  chemicals that would trigger the requirements. EPA’s RMP regulations  require facilities that handle more than threshold amounts of certain  chemicals to implement a risk management program to guard against the  release of chemicals into the air and surrounding environment. Covered  facilities must develop their own risk management plans, and some  facilities must also develop an emergency response program and conduct  compliance audits, among other requirements. Covered facilities must  also submit their risk management plans to EPA, including data on the  regulated substances handled, and prepare a plan for a worst-case  chemical release scenario.
Although EPA initially included high explosives in its list of regulated  substances, which would include explosives grade ammonium nitrate,  these explosives were subsequently removed from the list as a result of a  legal settlement. EPA officials also told us that fertilizer grade  ammonium nitrate was not considered for its list for RMP because the  agency had determined that it did not meet the criteria EPA established to  implement the statute. Specifically, EPA officials told us that ammonium  nitrate could have been included in the RMP regulations, but ammonium  nitrate was not included because it was not considered a toxic or  flammable chemical, which were among the criteria EPA used when the  agency first developed the regulations. Accordingly, ammonium nitrate  is not a covered chemical and EPA inspectors do not review facilities’ risk  management plans for this chemical during their RMP inspections. In  2006, EPA conducted an on-site inspection of the West, Texas facility,  but the inspection focused on anhydrous ammonia, not ammonium  nitrate.
section_title: Under the Executive Order, OSHA and EPA Are Seeking Information on Expanding Regulation and Oversight of Ammonium Nitrate, but Have Not Yet Proposed Any Regulatory Changes
paragraphs: In response to the August 2013 Executive Order on Improving Chemical  Facility Safety and Security, OSHA and EPA, as part of the federal  working group, have invited public comment on a wide range of policy  options for overseeing the housing and handling of hazardous chemicals  in the United States. Because they are still evaluating these options, the  agencies have not issued any notices of proposed rulemaking. As  directed by the Executive Order, in December 2013, OSHA issued a  Request for Information on potential revisions to its PSM and related  regulations, including its ammonium nitrate storage regulations. OSHA’s  Request for Information also seeks public input on changing the agency’s  enforcement policy concerning the retailer exemption in the PSM  regulations. In the Request for Information, OSHA states that “The West  Fertilizer facility is not currently covered by PSM, however it is a stark  example of how potential modernization of the PSM standard may include  such facilities and prevent future catastrophe.” In addition, as chair of one  of the workgroups established to implement the Executive Order, OSHA  solicited public input in January 2014 on federal policy options for  improved chemical safety and security, including whether to expand  OSHA’s PSM regulations and EPA’s RMP regulations to cover  ammonium nitrate, among other options. This solicitation also sought  public input on whether federal agencies should examine the use of third  party audits to promote safe storage and handling of ammonium nitrate.  The solicitation defined third party audits as inspections conducted by  independent auditors, retained by a chemical facility, who make process  safety and regulatory compliance recommendations. In an ongoing pilot  project in selected states implemented in response to the Executive  Order, federal agencies report improved coordination of inspections, such  as sharing inspection schedules, cross‐training inspectors, and  inter‐agency referrals of possible regulatory non‐compliance.
section_title: Some Countries Regulate and Oversee Ammonium Nitrate By Imposing Requirements on Facilities, Conducting Inspections, and Supporting Industry Initiatives to Promote Compliance
subsections: section_title: Other Countries’ Approaches Include Risk Assessments and Restrictions on Where and How Ammonium Nitrate Can Be Stored
paragraphs: According to foreign officials and government documents, Canada and  the three EU countries we contacted—France, Germany, and the United  Kingdom—require facilities with specified quantities of ammonium nitrate,  including fertilizer grade ammonium nitrate, to assess its risk and develop  plans or policies to control the risks and mitigate the consequences of  accidents. Like the United States, these countries are members of the  OECD, which has published best practices for managing the risks of  chemical accidents.  The OECD publication includes guidance on  preventing and mitigating the consequences of chemical accidents,  preparedness planning, and land use planning, among other things. For  example, OECD’s guidance recommends that regulatory authorities  ensure that facilities with hazardous substances assess the range of  possible accidents and require hazardous facilities to submit reports  describing the hazards and the steps taken to prevent accidents.
With respect to assessing the risks of ammonium nitrate, according to  Canadian officials and Canadian government documents, ammonium  nitrate is regulated under the country’s Environmental Emergency  Regulations, which include risk management provisions. According to  guidance published by Environment Canada, a federal-level regulatory  agency, facilities that store 22 tons or more of ammonium nitrate must  develop and implement an environmental emergency plan. In  developing an emergency plan, facilities are directed to analyze the risks  posed during the storage and handling processes for certain chemicals  and adopt practices to reduce the risks, taking into consideration the  impact a chemical accident would have on the surrounding community.
According to information provided by EU officials, facilities in the 28  member countries of the EU with specific quantities of ammonium nitrate  fertilizer are subject to the Seveso Directive, the EU legislation for  facilities that use or store large quantities of certain toxic, explosive, and  flammable substances, among other types of chemicals.  At a minimum,  EU officials told us that EU member countries must comply with the  Seveso Directive, although they have the option to adopt more stringent  requirements. The legislation was adopted after a chemical accident in  Seveso, Italy in 1976 that exposed thousands of people to the toxic  chemical known as dioxin. Under the Seveso Directive, last updated in  2012, member countries are to require facilities with large amounts of  ammonium nitrate fertilizer to notify the appropriate authority in their  respective country, adopt a major accident prevention policy, and in some  cases, develop a detailed safety report (see table 5).
Some countries, such as France and the United Kingdom, have other  requirements for notifying authorities about the types and quantities of  chemicals at facilities, including certain types of ammonium nitrate. In the  United Kingdom, officials told us that facilities with 28 tons or more of  certain types of ammonium nitrate must notify the Health and Safety  Executive or local authority and the fire authorities. French officials said  that facilities with more than 276 tons of ammonium nitrate fertilizer must  notify local authorities about their holdings.
The selected countries we reviewed generally reported having more  centralized land use policies that specify where facilities with large  quantities of ammonium nitrate should be located. For example, EU  officials explained that the Seveso Directive requires member countries to  develop and implement land use policies. Through controls on the siting  of new Seveso facilities and new developments in the vicinity of such  facilities, such as transportation routes and residential areas, they told us,  member countries’ policies aim to limit the consequences of chemical  accidents for human health and the environment. In the United Kingdom,  officials told us that facilities intending to store more than 1,102 tons of  ammonium nitrate must first receive permission from their local planning  authority to do so for relevant ammonium nitrate materials. They  explained that these local planning authorities consider the hazards and  risks to people in surrounding areas and consult with the Health and  Safety Executive prior to granting permission to such facilities.
Three of the countries we reviewed—France, Germany, and the United  Kingdom—restrict the use of wood for storage purposes in certain  instances, according to information and documents provided by relevant  officials. EU officials told us that the Seveso Directive does not prescribe  how chemicals, including ammonium nitrate, should be stored. EU  countries have developed their own technical standards or rely on  industry standards for storing and handling ammonium nitrate. For  example, according to information provided by French officials, after  several accidents involving ammonium nitrate fertilizer, the government in  France launched a working group to update existing ammonium nitrate  regulations, including storage and handling requirements. They described  the most recent regulations in France, issued in 2010, which include  updated fire resistance provisions for new and existing facilities banning  or restricting the use of materials such as wood and asphalt flooring for  storing ammonium nitrate. Specifically, according to documents provided  by French officials, the regulations direct facilities not to store ammonium  nitrate fertilizer in structures with wood walls or sides. According to an  official in Germany, strict storage requirements for using certain types of  ammonium nitrate fertilizer have led many farmers to voluntarily use an  alternative type of fertilizer, known as calcium ammonium nitrate., For  example, she explained that, in Germany, certain kinds of ammonium  nitrate must be divided into quantities of 28 tons prior to storage, and  quantities are separated by concrete walls. In addition, certain ammonium  nitrate and ammonium nitrate-based preparations must be separated  from combustible materials, for example by brick or concrete walls.  Guidance in the United Kingdom also recommends that buildings for  storing ammonium nitrate should be constructed of material that does not  burn, such as concrete, bricks, or steel, as does the recent advisory in the  United States published by OSHA, EPA, and ATF.
section_title: Foreign Oversight Approaches and Industry Initiatives Include Guidance on Safe Practices, Requirements for Routine Inspections, and Voluntary Third Party Audit Programs
paragraphs: Guidance on Safe Practices. In the countries we reviewed, government  entities developed materials to help facilities with ammonium nitrate  fertilizer comply with safety regulations. For example, in the United  Kingdom, the government published guidance on storing and handling  ammonium nitrate that illustrates proper storage practices and is written  in plain language. The United Kingdom also developed a checklist that  facilities can use as a compliance tool to determine whether they are  meeting safe storage requirements. In Canada, Environment Canada  issued a guidance document in 2011 so that facilities covered by its  Environmental Emergency Regulations, including facilities with certain  types and amounts of ammonium nitrate, can better understand and  comply with regulatory requirements.
The EU compiles information about chemical accidents and disseminates  publications that include guidance on how facilities can prevent future  incidents. Specifically, the EU has a system for reporting major accidents,  including accidents involving ammonium nitrate, and tracks the  information in a central database. For example, as of January 2014, this  database contained information on several incidents involving ammonium  nitrate dating back to 1986. EU researchers use this information to  develop semi-annual publications in order to facilitate the exchange of  lessons learned from accidents for both industry and government  regulators. Each publication focuses on a particular theme such as a  specific substance, industry, or practice, and summarizes the causes of  related accidents and lessons learned to help prevent future accidents.  EU officials told us that the next publication will be issued in the summer  of 2014 and will focus on the hazards of ammonium nitrate in part as a  result of the explosion that occurred in West, Texas.
Routine Inspections. In the EU, member countries are required to inspect  facilities with large quantities of chemicals covered by the Seveso  Directive, which includes facilities with ammonium nitrate. According to  EU officials and documents, the EU’s Seveso Directive requires covered  facilities to be inspected either annually or once every 3 years, depending  on the amount of hazardous chemicals a facility has—the greater the  amount, the more frequent the inspection. EU officials also explained that  member countries are required to report information to the European  Commission every 3 years on how they are implementing the Seveso  Directive requirements, including the number of facilities that have been  inspected in their country. According to a report published by the  European Commission in June 2013, member countries reported in  December 2011 that they had 10,314 covered facilities. According to the  report, of those facilities to be inspected annually, 66 percent were  inspected, on average, in 2011, and of those facilities to be inspected  once every 3 years, 43 percent were inspected, on average, in 2011.
Voluntary Initiatives and Third Party Audits. In the countries we reviewed,  the fertilizer industry has actively promoted voluntary compliance with  national safety requirements among facilities with ammonium nitrate  fertilizer. For example, Fertilizers Europe, which represents the major  fertilizer manufacturers in Europe, published guidance in 2007 for the  storage and handling of ammonium nitrate-based fertilizers. This  guidance recommends that buildings used to store ammonium nitrate- based fertilizers be constructed of non-readily combustible materials such  as brick, concrete, or steel and that wood or other combustible materials  be avoided, among other things. Fertilizers Europe has also developed  a compliance program that is a key requirement for membership, which  consists of independent third party audits. As part of the program, it  developed a self assessment tool for fertilizer manufacturers to use to  identify gaps and possible improvements.
In the United Kingdom, the government and the fertilizer industry worked  together in 2006 to develop a voluntary compliance program for facilities  that manufacture and store fertilizers, among other activities, including  ammonium nitrate-based fertilizers.  According to a United Kingdom  official, the government provided some of the initial funding for this  initiative, and the voluntary compliance program is now self financed.  Although the program was initially focused on fertilizer security, it has  evolved over the years to also address fertilizer safety in the United  Kingdom. As part of the voluntary compliance program, participating  facilities carry out risk assessments. These facilities are audited annually  by an independent audit team comprised of specialists to determine  whether they comply with industry and government standards, including  standards for safely storing and handling ammonium nitrate fertilizer.
Officials we interviewed in the United Kingdom told us that the  government encourages and supports this industry initiative and that  about 90 percent of facilities with ammonium nitrate in the United  Kingdom, including those that have small quantities, are members of the  voluntary program. A United Kingdom official said, in his opinion, one  would expect facilities participating in this industry initiative to be more  likely to be found in compliance by the government when it conducts its  own inspections. Furthermore, government officials, industry  representatives, and program administrators meet twice a year to discuss  how the program is being implemented and monitored.
section_title: Conclusions
paragraphs: Large quantities of ammonium nitrate are present in the United States,  although the precise number of facilities with ammonium nitrate is not  known. While incidents involving ammonium nitrate are rare, this  chemical can react in ways that harm significant numbers of people and  devastate communities. Facilities may be required, in certain  circumstances, to report their chemical holdings to federal, state, and  local authorities for security and emergency planning purposes. However,  given the various reporting requirements and numerous reporting  exemptions, some facilities may be uncertain about what to report to  whom. Through the new Executive Order, federal agencies including  DHS, EPA, and OSHA have the opportunity to work together on data  sharing initiatives to help identify facilities with ammonium nitrate fertilizer.  Such data sharing could help federal agencies identify facilities that are  not complying with their regulations and enable OSHA to target high risk  facilities with ammonium nitrate for inspection. Without improved  coordination among the various federal and state agencies that collect  data on facilities that store potentially hazardous chemicals, identifying  facilities with ammonium nitrate for purposes of increasing awareness of  the hazards and improving regulatory compliance will remain a challenge.
Although OSHA has requirements for storing ammonium nitrate fertilizer  in its Explosives and Blasting Agents regulations that could reduce the  likelihood of an explosion, OSHA has done little to ensure that the  fertilizer industry, which is one of the primary users of ammonium nitrate,  understands how to comply with its existing regulations. The August 2013  chemical advisory and OSHA’s February 2014 letter to facilities help  clarify how OSHA’s Explosives and Blasting Agents regulations apply to  fertilizer facilities. However, without additional action by OSHA to promote  awareness of how to comply with its regulations, fertilizer facilities may  not know whether their practices are in compliance with OSHA’s existing  ammonium nitrate storage regulations or if changes need to be made.  Moreover, unless OSHA takes steps to leverage additional resources to  support its enforcement efforts, whether through enhanced targeting or  coordination with other agencies or outside parties, beginning with  encouraging voluntary compliance with ammonium nitrate regulations  through various industry initiatives, it will not know the extent to which  dangerous conditions at some facilities may continue to exist.
While much can be achieved under current regulations, OSHA and EPA’s  regulations contain gaps with respect to ammonium nitrate that may allow  unsafe facilities to operate and poor planning to persist. OSHA has not  significantly changed its ammonium nitrate storage regulations since they  were issued in 1971, which means that fertilizer facilities may be adhering  to outdated practices. For example, other countries we reviewed have  revisited and updated their ammonium nitrate regulations and the  National Fire Protection Association is considering making changes to its  ammonium nitrate storage standards as a result of the explosion in West,  Texas. In addition, as a result of incidents involving ammonium nitrate  abroad, countries in the European Union and Canada require facilities to  assess the risks of working with ammonium nitrate fertilizer, and the  European Union requires member countries to routinely inspect facilities  that have very large quantities of it. These approaches offer examples of  how the risks of ammonium nitrate can be managed. Although increased  regulation may be more burdensome to industry, without some means of  ensuring that high risk facilities plan for and manage the risks associated  with ammonium nitrate, such facilities may not be prompted to adequately  address the risks the chemical creates for workers and neighboring  communities.
section_title: Recommendations for Executive Action
paragraphs: 1.  To improve federal oversight of facilities with ammonium nitrate, we  recommend that the Secretary of Labor, the Administrator of EPA,  and the Secretary of Homeland Security, as part of their efforts as  members of the Chemical Facility Safety and Security Working Group  established by the Executive Order issued in August 2013, develop  and implement methods of improving data sharing among federal  agencies and with states.  2.  We also recommend that the Secretary of Labor direct the Assistant  Secretary for Occupational Safety and Health to take the following  three actions:
Extend OSHA’s outreach to the fertilizer industry. For example,  OSHA could work with the fertilizer industry to develop and  disseminate informational materials related to storage of  ammonium nitrate.
Take steps to identify high risk facilities working with ammonium  nitrate and develop options to target them for inspection.
Consider updating regulations for the storage of ammonium nitrate  taking into consideration, as appropriate, other related standards  and current practices.  3.  To strengthen federal oversight of facilities with ammonium nitrate, we  recommend that the Secretary of Labor and the Administrator of EPA  direct OSHA and EPA, respectively, to consider revising their related  regulations to cover ammonium nitrate and jointly develop a plan to  require high risk facilities with ammonium nitrate to assess the risks  and implement safeguards to prevent accidents involving this  chemical.
section_title: Agency Comments and Our Evaluation
paragraphs: We provided a draft of this report to the Administrator of EPA, the  Secretary of Homeland Security, and the Secretary of Labor for review  and comment. We received written comments from EPA, DHS, and  OSHA, which are reproduced in appendices I, II, and III. EPA, DHS, and  OSHA agreed with our recommendation that the agencies improve data  sharing and described their current efforts to address this issue as part of  their implementation of the Executive Order on Improving Chemical  Facility Safety and Security. The agencies stated that a status report by  the Executive Order Working Group, which will be submitted to the  President by the end of May, 2014, will include proposals for enhancing  data sharing among federal agencies and with states.
OSHA agreed with our recommendation that the agency conduct  additional outreach to the fertilizer industry, stating that additional  outreach efforts will be identified in the Executive Order status report and  that these efforts should help the fertilizer industry understand OSHA’s  safety requirements and industry best practices. OSHA also agreed with  our recommendation that the agency target high risk facilities for  inspection, stating that the agency is evaluating options for targeting high  risk fertilizer facilities for inspection.
OSHA and EPA agreed with our recommendation that the agencies  consider revising their regulations to cover ammonium nitrate. OSHA is  currently reviewing public comments submitted in response to a Request  for Information on a proposed revision to the agency’s Process Safety  Management and Prevention of Major Chemical Accidents regulations  and the a request for public input on issues associated with Section 6 of  the Executive Order, which addresses Policy, Regulation, and Standards  Modernization. EPA stated that the agency will be publishing a Request  for Information seeking public input on its proposed revision to process  safety and risk management issues relevant to its Risk Management  Program regulations, including coverage of ammonium nitrate. In  addition, EPA, DHS, and OSHA provided technical comments, which we  have incorporated as appropriate. We also provided portions of the draft  report related to each of the four countries we reviewed to relevant  officials from each country, and incorporated their technical comments, as  appropriate.
As agreed with your offices, unless you publicly announce the contents of  this report earlier, we plan no further distribution until 30 days from the  report date. At that time, we will send copies to the appropriate  congressional committees, the Administrator of EPA, the Secretary of  Homeland Security, the Secretary of Labor, and other interested parties.  In addition, the report will be available at no charge on the GAO website  at http://www.gao.gov.
If you or your staffs have any questions concerning this report, please  contact me at (202) 512-7215 or moranr@gao.gov. Contact points for our  Offices of Congressional Relations and Public Affairs may be found on  the last page of this report. Key contributors to this report are listed in  appendix IV.
section_title: Appendix I: Comments from the Environmental Protection Agency
section_title: Appendix II: Comments from the Department of Homeland Security
section_title: Appendix III: Comments from the Department of Labor
section_title: Appendix IV: GAO Contact and Staff Acknowledgments
subsections: section_title: GAO Contact
section_title: Staff Acknowledgments
paragraphs: In addition to the contact named above, Betty Ward-Zukerman, Assistant  Director; Catherine Roark, Analyst in Charge, Theodore Alexander,  Nancy Cosentino, Joel Marus, and Meredith Moore, made significant  contributions to all phases of the work. Also contributing to this report  were Hiwotte Amare, Jason Bair, James Bennett, Susan Bernstein,  Stephen Caldwell, Sarah Cornetto, Charles Johnson, Jr., Kathy Leslie,  Ashley McCall, Sheila McCoy, Jean McSween, John Mortin, Vincent  Price, Stephen Sanford, Sushil Sharma, Linda Siegel, Maria Stattel, and  Kathleen van Gelder.