I’ll go first. The Obama Administration Issues Executive Order on Chemical Safety in the Aftermath of the Tragedy in West, Texas

by Reed Smith

In the aftermath of the April fertilizer plant explosion in West, Texas, that killed 14 people, the Obama Administration has taken the first steps toward a regulatory response aimed at strengthening the oversight of chemical storage facilities. As we noted in a prior client alert, both Congress and the Executive Branch are considering a number of legislative and regulatory responses to this tragedy. The Obama Administration has taken the first step with an Executive Order ("EO") aimed at improving the coordination between (1) federal agencies, state and local governments, and first responders on chemical facility safety and security issues and (2) federal agencies responsible for chemical safety and security issues. These changes would start with the creation of a Chemical Facility Safety and Security Working Group at the federal level. But the reach of this EO goes beyond process-based moves. The EO opens the door, for example, to more information being made available to state and local governments on which chemicals are being stored at facilities around the country. It also opens the door to more chemicals being listed on key safety and security registries with the federal government. Finally, it specifically addresses the chemical responsible for the blast – ammonium nitrate – and tasks the Departments of Labor, Homeland Security and Agriculture with determining safer and more secure ways of its storage and handling. As we noted previously, pressure continues to build for a regulatory and/or legislative response. We expect this step on chemical safety and security to be the first and not the last.

Creation of a Chemical Facility Safety and Security Working Group: with the stated purpose of improving and enhancing the sharing of information on chemical facilities.

Section 2 of the EO creates a Chemical Facility Safety and Security Working Group ("Working Group"), which has a broad scope of membership from the Departments of Homeland Security, Labor, Justice, Agriculture, and Transportation, along with the Environmental Protection Agency ("EPA"). Sections 3 and 4 task the Working Group with developing plans to improve and enhance intergovernmental coordination at the federal level, and intra-governmental coordination between the federal state and local and tribal levels, including ways to provide "ready access to key information" on chemical facilities at the state and local level (Section 3(iii)). Lack of information was cited as critical to the loss of life at West, and was the subject of a hearing before the House Homeland Security Committee, Subcommittee on Cybersecurity, Infrastructure Protection and Security Technologies, chaired by Congressman Patrick Meehan (R-PA-7) and held August 1, 2013. The firefighters who initially arrived at the scene were unaware of the ammonium nitrate and its explosive potential. As Sean Moulton, Director of Open Government Policy at the Center for Effective Government, testified, this lack of knowledge was in large part because of the fact that West had never reported the approximately 270 tons of the ammonium nitrate stored there to the Department of Homeland Security, despite being required to do so under the Chemical Facilities Anti-Terrorism Standards ("CFATS") program. With both congressional and Executive Branch focus on collecting better information from those who are non-compliant with federal chemical facility safety requirements, the result of the EO could be stricter reporting requirements and the creation of tools, such as an online database, to allow state, local and tribal governments access to this data.

Will this lead to the EPA updating the Risk Management Plan to include Ammonium Nitrate?

We would note, too, that Democrats in the Senate are going further and urging the EPA to expand its Risk Management Program ("RMP") for hazardous chemical safety to include ammonium nitrate as well. Senate Environment and Public Works Chair Barbara Boxer (D-CA) called for this step during a committee hearing June 27. With ammonium nitrate identified as the reason behind the blast, the question is which agency will ultimately take steps to regulate it: Homeland Security, through its CFATS program, or the EPA, through its RMP program. The EO leaves the possibility for both to take action. Section 6 requires the Administrator of the EPA to review the RMP to determine whether it should be expanded to include "additional regulated substances and types of hazards." It also requires the Secretary of Homeland Security (along with the Secretaries of 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 and identify ways in which ammonium nitrate safety and security can be enhanced under existing authorities."


A final report on the explosion in West, Texas, is due soon from the Chemical Safety Board. The response by federal regulators will continue for much longer.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Reed Smith | Attorney Advertising

Written by:

Reed Smith

Reed Smith on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.