August 21, 2017

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GAO (Government Accountability Office) Recommends Federal Action on Ammonium Nitrate

A deadly explosion at a fertilizer plant last year has a government watchdog agency calling on federal agencies to assume a greater role in preventing accidents from ammonium nitrate (AN). 

The Government Accountability Office (GAO) has recommended that OSHA, EPA and the Department of Homeland Security (DHS) take action after its investigation found numerous gaps in federal oversight of AN facilities. GAO’s investigation was launched at the request of members of Congress after some 30 tons of AN detonated during a fire at a plant in West, Texas in April 2013. The incident resulted in the deaths of more than a dozen people and extensive property damage. 

OSHA’s explosives regulations,, which have not been significantly revised since 1971, apply to AN facilities. The OSHA regulations allow the substance to be stored in wooden buildings, which increases the fire and explosion hazard, GAO said in a report released May 21. In addition, GAO asserted OSHA has done little outreach to increase awareness of its rules within the fertilizer industry, a primary user of AN. OSHA’s high hazard workplace inspection program does not target AN facilities and, according to GAO, information on these facilities is not available to OSHA to use for targeting. 

Other OSHA and EPA chemical safety regulations require facilities to complete hazard assessments, use procedures to prevent and respond to accidents and conduct routine compliance audits, but the rules do not apply to AN, according to GAO. 

GAO said the total number and location of U.S. facilities storing AN is unknown. However, 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. Neither OSHA nor EPA has reporting requirements; however, DHS requires facilities storing reportable quantities to provide the information for security purposes. Federal law also requires certain facilities to report their AN holdings to state and local agencies for emergency response purposes, but the data is not routinely shared with federal authorities. Under a 2013 Executive Order, federal agencies are exploring options for improving data sharing, but this effort remains unfinished. 

“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,” GAO wrote. 

Federal agencies should improve data sharing among themselves and with the states, OSHA and EPA should consider revising their related regulations to cover AN, and OSHA ought to conduct outreach to the fertilizer industry and target high risk facilities for inspection, GAO recommended. 

Steps to improve communications have already been taken, the auditors noted in their report. For instance, OSHA recently published information and updated its website to explain how its regulations on explosives and blasting agents at 29 CFR 1910.109 apply to AN fertilizer, what legal requirements apply and how to store and handle AN safely. An August 2013 advisory – issued jointly by OSHA, EPA and the Bureau of Alcohol, Tobacco and Firearms – highlighted OSHA’s regulations for fertilizer-grade AN. 

Jackson Lewis P.C. © 2017


About this Author

Bradford T. Hammock, Jackson Lewis, workplace safety law attorney, Hazardous Conditions Lawyer

Bradford T. Hammock is a Principal in the Washington, D.C. Region office of Jackson Lewis P.C. He focuses his practice in the safety and health area, and is co-leader of the firm’s Workplace Safety and Health Practice Group.

Mr. Hammock’s national practice focuses on all aspects of occupational safety and health law. In particular, Mr. Hammock provides invaluable assistance to employers in a preventive practice: (1) conducting full-scale safety and health compliance audits; (2) reviewing and revising corporate safety and...

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Henry Chajet, Jackson Lewis, health safety attorney, dispute resolution lawyer, overcharge recoveries legal counsel
Of Counsel

Henry Chajet is Of Counsel in the Washington, D.C. Region office of Jackson Lewis P.C.

Mr. Chajet counsels and represents clients in environmental, health and safety (EH&S) matters and antitrust matters, focusing on crisis management, dispute resolution, trial and appellate litigation, standard setting, liability prevention, regulatory and congressional proceedings and “direct purchaser” overcharge recoveries for corporate clients in antitrust price manipulation cases. He defends investigations and enforcement actions by the Occupational Safety and Health Administration (OSHA), Mine Safety and Health Administration (MSHA), Environmental Protection Agency (EPA), Department of Transportation (DOT), National Transportation Safety Board (NTSB), National Institute for Occupational Safety and Health (NIOSH) and other federal and state agencies, as well as in related tort claims and criminal cases, and in EH&S whistleblower or discrimination claims.

To achieve an integrated defense strategy at the initiation of a government investigation or enforcement action, Mr. Chajet coordinates forensic accounting and technical experts, insurance issues, government interviews, document production and public relations experts. He has extensive experience representing clients in cases involving fatal or serious injuries, explosions, chemical releases, fires, manufacturing, transportation and construction accidents, mine disasters and allegations of product toxicity or community harm. Mr. Chajet has served as co-lead counsel in successful, multimillion dollar recovery cases for corporate clients that were “direct purchasers” of commodities and products for which prices were artificially increased through monopoly price manipulation, violating antitrust law.