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Death in Boston and West, Texas – Intent Hidden in Plain Sight?

There’s no question that the injuries and deaths at the fertilizer plant were also the result of intentional acts.

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The sad week of April 14 saw death and destruction play out in ways we all have yet to digest. One person summed it up as “a really sad affair all around” and that it was interesting to see how “even though the fertilizer plant was more deadly, the Boston attack is a much bigger deal, mainly because of the power of intent.”

It is certainly true that the Boston bombers intended to injure as many people as possible in the most public way possible. But while intent is more difficult to observe in the West, Texas fertilizer plant explosion, there is no question that the injuries and deaths there are also the result of people’s intentional acts. The intent of those who caused the deaths and injuries in West is harder to see, even though there are public records of their actions, and some are even public figures.
We can start with the well-known explosive potential of fertilizer. On April 19, 1995, 168 people were killed by a truck bomb that used ammonium nitrate to blow up the Alfred P. Murrah Federal Building in Oklahoma City. Hundreds were injured, and 168 people, 19 of whom were children, were killed.
It is unlikely that the owners of the West plant intended to kill anyone, but there was, at least, gross neglect in the siting of the plant in the midst of a town, where the company was situated – so close to the town, schools and other infrastructure. [Aerial view]
In retrospect, there were many other red flags that cast doubt on the integrity of this company. Those flags can be found in the way they stored the ammonium nitrate, in the construction of the building, and in their violation of federal law by failing to report the amounts of the chemical they had on hand.

Companies tend not to flout the law for the sake of being rebels. It is a reasonable guess that the explosion occurred because it was in someone’s financial interest to ignore the danger.

The explosion at a workplace may point to others guilty of at least gross neglect. Where were the Occupational Safety and Health Administration (OSHA) inspectors? Where were the workers’ compensation carrier inspectors? Where were the state, county, and state government officials and bureaucrats who allowed a town and a plant filled with dangerous material to be sited so near to each other?

On April 20, Al Jazeera reported that at least one state agency was aware of the situation:
“Police said there was no indication of foul play in the fire or the blast it triggered at the privately owned farm supply business that was last inspected two years ago. The plant had notified a state agency that it stored potentially combustible ammonium nitrate on the site.”

One group that certainly cannot be blamed were the emergency workers who responded to the fire but were then killed by an explosion that “was so powerful it registered as a magnitude 2.1 earthquake.” The blast was felt up to 50 miles away.

The investigation of the causes of the disaster – causes, rather than just one cause – will likely use high-tech tools to identify causes and effects. But unlike the Boston bombings, the West chain of causation must be longer and more complex if the investigators are to do a complete job. It is worth noting reports that the blast site is being treated as a crime scene rather than, as “they strongly suspect, an industrial accident.” The narrower view would make it impossible to track the cause of the explosion conflagration, and possible poisoning in West and to identify all the victims. Agence France Presse reported that the blast sent out an acrid, toxic cloud around the factory and smoke billowed out of the factory.

Who Is Responsible?

We have two likely suspects – West Fertilizer and its owner, Doland R. Adair, and OSHA. There may well be others.

  • West Fertilizer Company

Al Jazeera reported that police had found no evidence of foul play in the fire or the explosion and noted that the plant had been inspected two years ago. In addition, the plant had notified “a state agency” that potentially combustible ammonium nitrate was stored at the site. It would be helpful to know the identity of that agency and why it took no action to prevent the loss of life.

However, Agence France Presse tells a different story. It reports that the West Fertilizer Company has a history of violating the law. The company “paid more than $5,000 in fines in 2012 after being cited for mislabeled cargo tanks and inadequate transport practices, and had been cited by state authorities for a lack of permit in 2006.”

These are not trivial offenses, and the fact that there were several problems that persisted over at least six years is not a good sign. It suggests that the company had a habit of disregard for safety. It would be interesting to track down the owners and, among other things, ask whether they lived in West.

  • The Occupational Safety and Health Administration

People are generally aware of OSHA’s existence but may not know much about how it operates. OSHA will be in the public eye as details of the explosion are sorted out. It will also play a role in the investigation into the explosion and may be a target of blame. Here are some details about OSHA that may be helpful in assessing the investigation.

OSHA has long been blamed for not being sufficiently active in protecting worker health and safety. A PBS Frontline investigation – “A Dangerous Business” – identified a number of problems with OSHA’s ability to promote its mission. That PBS investigation took place during the George W. Bush administration.

David Michaels, assistant secretary of labor for occupational safety and health, certainly has the qualifications to reform OSHA. His top staff is made up of people dedicated to workplace safety and who bring diverse experiences to the agency.

OSHA is required, by law, to ensure that every working person has safe and healthful working conditions. It has two main functions – inspecting workplaces and promulgating health and safety standards. The home page of its web site is crowded with tons of links. Not pretty, but it probably gets the general public and practitioners where they need to go.

OSHA’s work is carried out either by OSHA directly or by states that choose to take on those responsibilities. The law allows these Plan States to assume the responsibility if they can show they have the capacity. In FY2011, there were 40,625 federal inspections and 52,314 Plan State inspections.

According to the International Labor Organization (ILO), Texas should have 1,108 inspectors to meet the ILO’s benchmark. A new AFL-CIO report on workplace health and safety says it would take the 98 OSHA inspectors assigned to Texas 137 years to inspect all Texas jobsites. In other words, Texas has only about 10 percent of the inspectors needed to keep up with the work. Put another way, Texas has a ratio of inspectors-to- number-of-employees of 1 inspector for every 103,899 employees. These statistics place Texas near the bottom of all states. Worse than Texas (by alphabetical order) are Arkansas, Florida, Louisiana and New Hampshire.

Why does OSHA have so few inspectors and resources? In general, government agencies that enforce labor and workplace laws are not popular with many employers, and employers have a number of powerful organizations, such as the Chamber of Commerce, to lobby on their behalf.

The US Supreme Court Has “Judicially Amended” the Law to Limit OSHA’s Effectiveness

Congress wrote OSHA to make workplace inspections the centerpiece of its mandate to provide safe workplaces. The law was intended to give OSHA a right to inspect when a dangerous emergency arose. It also created a right for OSHA to enter and inspect a workplace but required that the purpose and process for the inspection be reasonable.

In 1978 in Marshall v. Barlow’s, Inc., the Supreme Court “judicially amended” OSHA to require that OSHA get a search warrant to inspect an employer’s facility.

That decision made the process of inspecting workplaces more difficult and expensive. It also punched a hole through valuable rights provided in the Fourth Amendment against unreasonable searches and seizures. To understand why this is the case, it is first necessary to take a look at what the Fourth Amendment says.
The Fourth Amendment has two parts. Part 1 is the right to be free from unreasonable searches and seizures. Part 2 says that a government official seeking a search warrant must show probable cause of a crime.
OSHA does two sorts of investigations. One is based on evidence that shows probable cause that an employer is violating OSHA. The other is a “programmed inspection,” basically a random inspection, but one that especially targets more dangerous work. OSHA will never be able to show probable cause for a programmed inspection, but that does not mean its programmed inspections are unreasonable. For example, knowing that OSHA may show up to do a programmed inspection gives all employers an incentive (beyond just being a good corporate citizen) to operate safe workplaces.
The Supreme Court’s decision actually undermines OSHA’s mission. The added step of getting a search warrant for all programmed inspections places an unnecessary burden on OSHA and a strain on the courts’ workload, while adding nothing to protect civil rights and actually weakening the Fourth Amendment.
What the majority of justices concluded was that an administrative inspection was a Fourth Amendment search. Searches are unreasonable unless undertaken with a search warrant. OSHA inspections are not quite a Fourth amendment search, so a search warrant could be issued based on a showing of weakened probable cause to believe there was a violation. Finally, the Supreme Court created a new standard for administrative searches – weighing the benefit of the need for a search versus the burden on the privacy interest.
Justice John Paul Stevens’ dissent pointed out the many defects of the majority decision and the problems it created by requiring a warrant and then lowering the level of cause for a warrant. Stevens also pointed out that the OSHA statute already requires that inspections must be reasonable, and OSHA’s regulations on inspections had already been scrutinized during the rulemaking process.
This decision may seem innocuous, but it has created a huge hole in employee protections. It has led to an expansion of warrantless searches and seizures of employees (such as drug tests) based on their presumed lowered expectations of privacy, while it has made employees less safe by making it harder for OSHA to inspect workplaces.

Finally, as information surfaces, other state and federal government agencies will become involved. For example, Reuters reports that the fertilizer plant failed to report that it had been storing 1,350 times the amount of ammonium nitrate that normally triggers Department of Homeland Security (DHS) oversight. The only report was to the Texas Department of State Health Services, which said the plant had 270 tons of it on hand last year. That information was not provided to DHS.

Was there intent to injure the people of West, Texas? If ammonium nitrate is stored properly, it is not dangerous. West Fertilizer Company chose to hold large amounts of ammonium nitrate in conditions that made it dangerous, and this behavior was not a one-time lapse. The company had a record of evading the law and ignoring its responsibilities under the law.
Given the level of danger to those living and working close to the plant, a reasonable, law-abiding person would not have behaved this way. The totality of the company’s record of failing to comply with the law, make mandatory reports or provide secure and safe storage all suggest that there was at least criminal recklessness.
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