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.”
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?
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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.
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.
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.
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.