Media Matters was angry last night that the cable-news channels were not reporting on the West Fertilizer Co.’s Department of Homeland Security “regulation violation” regarding the storage of ammonium nitrate. They quote Reuters as their source:

Reuters: TX Fertilizer Plant Was Storing “1,350 Times The Amount Of Ammonium Nitrate That Would Normally Trigger Safety Oversight By The U.S. Department Of Homeland Security.” On April 20, Reuters reported that the West, Texas, fertilizer plant that exploded on April 17, owned by West Fertilizer, had been storing 270 tons of ammonium nitrate. Reuters noted that “[f]ertilizer plants and depots must report to the DHS when they hold 400 lb (180 kg) or more of the substance,” which “can also be used in bomb making,” but that West Fertilizer “did not tell the agency about the potentially explosive fertilizer as it is required to do.” [Reuters, 4/20/13]

There are two problems here.

One, Reuters isn’t quoting someone from the DHS, but a person “familiar with DHS operations.” And two, I can’t find anything to verify that what the Reuters source says is accurate.

For example, Today’s Dallas Morning News reported, in great detail, the role of state agencies who regulate some portion of the West Fertilizer’s business – The Texas Commission on Environmental Quality, the Office of the Texas State Chemist, the Department of State Health Services — but the only federal agency that’s mentioned in the piece is the Pipeline and Hazardous Materials Safety Administration (transportation regulation, not storage). The News adds “There are no uniform federal rules for ammonium nitrate storage, and state rules vary.”  

Well, reporting more than “400 lb” of ammonium nitrate to DHS would certainly qualify as a “uniform federal rule,” no?

Maybe the Obama administration can help. Here’s Jay Carney form Monday’s briefing:

On the issue that you raise, this is currently, obviously, an active investigation.  The cause is still unknown.  And it is still too early to point to specific violations, if any.  The National Response Team of the Bureau of Alcohol, Tobacco, Firearms, and Explosives along with the National Criminal Enforcement Response Team and a criminal investigative team from the Environmental Protection Agency are on scene to investigate the explosion at the fertilizer plant.

Let’s be clear, though.  Chemical plant safety is a high priority and all of the relevant departments and agencies, including the Department of Homeland Security, the EPA, the Department of Labor, including OSHA within the Department of Labor, the Department of Transportation and the U.S. Department of Agriculture and the Chemical Safety Board continue to work together within their authorities to assess this tragic situation on the ground and provide technical assistance as requested.

Well, that didn’t help much, did it?

In any event, Reuters and Media Matters point to a specific violation. But there’s nothing from Team Obama on it. If such a glaring violation of a DHS law had been broken, wouldn’t there be some call to immediately investigate every fertilizer retailer in the country? Yet, there’s nothing.

According to the DHS website, there is a proposed regulation called the Ammonium Nitrate Security Program that might apply here, but a search of the Federal Register shows that the new regulation has yet to be adopted. The latest update on the proposal is from January 8, 2013 and states (emphasis mine):

On October 29, 2008, DHS published an Advance Notice of Proposed Rulemaking (ANPRM) for the Secure Handling of Ammonium Nitrate Program, and received a number of public comments on that ANPRM. DHS reviewed those comments and published a Notice of Proposed Rulemaking (NPRM) for the Ammonium Nitrate Security Program on August 3, 2011. NPPD accepted public comments until December 1, 2011, and is now reviewing the public comments and developing a Final Rule related to the Ammonium Nitrate Security Program.

And as for the 400 pound threshold, that gets a mention in a footnote from a 2008 proposal to amend the regulation of ammonium nitrate:

1/     The listing of AN in explosive form in Appendix A to CFATS covers any commercial grade of ammonium nitrate (with more than 0.2 percent combustible substances, including any organic substance calculated as carbon, to the exclusion of any other added substance). The screening threshold quantities for this form of AN are 5,000 lbs (as a release-explosive) and 400 lbs when in transportation packaging (as a theft-explosive). Appendix A also lists AN in solid form (with a nitrogen concentration of 23% or greater) with an STQ of 2000 lbs. This form of AN is commonly used as a fertilizer in the agricultural community and, when used in a mixture, will count toward the STQ if the mixture contains a minimum concentration of 33% or more of solid AN.

If there’s no “final rule” yet on the security program, what was the West Fertlizer Co. supposed to report to the Department of Homeland Security?

And one final thing doesn’t make sense, at least to me. Reuters wrote that the plant had on hand “1,350 times the amount of ammonium nitrate that would normally trigger safety oversight by the U.S. Department of Homeland Security (DHS).”

Here’s the math Reuters is using. The Texas Department of State Health service stated that the firm had 270 tons (540,000 pounds) of ammonium nitrate on hand last year. 540,000 pounds divided by 400 pounds gives us 1350. But that Texas Dept. of State Health number is for the entire year, not what was on hand the day of the plant explosion. Reuters has since reported that there was one rail car filled with ammonium nitrate at the plant and that rail car wasn’t the cause of the explosion, but the “victim of that explosion.”

And there’s nothing in this later Reuters report on any DHS violation by West Fertilizer.

Maybe the editor and writer from that first Reuters report can check again with their person “familiar with DHS operations” and find out for us.

I’ve e-mailed DHS for a comment on the Reuters story and will update this post when I hear back.