Weaver fire reveals loopholes in regulations meant to keep public safe from chemical accidents

Nearly three months after the Winston Weaver fertilizer plant fire left Winston-Salem holding its collective breath for five days, members of the city's public works committee sat rapt in council chambers, listening to city staffers present their thoughts on how to prevent the incident from repeating itself.

Then came the big question, from Councilmember John Larson: 

“Is there another fertilizer plant type example out there somewhere that we should be worried about?” 

Interviews with experts and reviews of documents show the answer hinges on Tier II Chemical Inventory reporting – a federal requirement that compels companies that store hazardous chemicals to report what they have, and how much of it. The reports then can be accessed by the public on request and used by first responders in case of emergency. 

A review of the reports from within Forsyth County shows at least six different facilities have materials the Occupational Safety and Health Administration deems “reactive highly hazardous chemicals which present a potential for a catastrophic event.”

But there could be more.

That's because Tier II reporting is done on a kind of honor system, says Stan Meiburg, a former acting deputy administrator for the Environmental Protection Agency.  

“Right now the state is all self-reported,” says Meiberg. “There's not really an audit. There's the capability of doing audits but nobody, no agency really has the time.”

In North Carolina, the program is administered by the state Department of Public Safety. Josh Langdon manages the program. He says auditing all these reports is not a one-person job. 

“I mean, there's 10,000,” says Langdon. “I can't review every single one every year.”

Langdon says other states including Florida have assigned a team of people to the same task. After the fire, Langdon was permitted to hire two temporary employees to help share the load. 

For the most part though, North Carolina relies on an automated system created by the University of Texas at Dallas to process the reports and email companies that have previously submitted reports, reminding them to submit again. 

“It's generally just one person at every facility that takes care of this. And if that person has moved on, and not updated their stuff prior to them leaving that notification will still go to them,” says Langdon. “If they're not there, no one's going to see it.”

If the company still fails to submit after three reminders are sent out, Langdon says state and county emergency managers won't be notified, which begs the question, under what circumstances would authorities know if a company didn't comply? 

“If they looked into it, or something happened or came up,” says Langdon. “Or if someone asked.”

Langdon says if they do find out a company hasn't turned in its report, the agency does have the capability to send them certified letters and then fine them if nothing changes.

That wasn't done in Weaver's case though.

The company failed to submit its chemical inventory reports for 2020 without facing consequences. State and local officials both say they did not follow up with them, and the company was never fined.

The other side of this is the inspection process, and things are equally muddy here. 

The agency primarily charged with ensuring that companies are storing hazardous chemicals properly is OSHA. But it is only able to do about 2,500 inspections per year, out of 300,000 businesses in the state. That's according to Scott Mabry, with the North Carolina Department of Labor's Occupational Safety and Health Division. 

“It could be 10 or 15 years between an inspection at a mid-level risk employer, just based on our staffing,” says Mabry. 

The agency does try to prioritize high-risk industries, like construction. But fertilizer plants, or businesses that store ammonium nitrate, are not considered high-risk. In some cases, inspections are prompted by workplace accidents. But the agency was not called to inspect after a small fire broke out at Winston Weaver in December of 2021. 

“So unless there's an employee injury, we often don't get involved with things that may be minor,” says Mabry. “Now, if there was a fire, like in a bathroom or something like that and no one was hurt, we would not get involved with anything like that.”

When the agency does conduct an inspection, it is often following hazardous materials standards that have not been updated for decades. The rules governing the storage of ammonium nitrate have not been changed significantly since 1971. 

The U.S. Chemical Safety Board did issue several recommendations pertaining to ammonium nitrate after a fertilizer plant fire in West, Texas, left 15 people dead. But Rafael Moure-Eraso, who headed the board at the time of the accident, says they've largely gone unadopted. 

“The amount of hoops that you need to jump through to get a regulation, a federal regulation in the books to regulate a chemical is absolutely incredible to the point of paralysis,” he says.

OSHA isn't the only agency responsible for inspections though — facilities are also subject to building code requirements. And the local code inspectors do yearly inspections to make sure they are compliant. But Charlie Johnson with the Office of State Fire Marshal says there's a hitch.

“If you have a facility that is storing hazardous materials, prior to when the code was originally adopted in 1991, then there's not much really the local code officials are going to be able to do to affect change in that facility,” says Johnson.

Johnson adds that's because many of the code requirements governing hazardous materials were enacted after 1991. So in many cases, he says inspectors just won't check up on a facility's chemicals if it was built prior to that. 

“There's an awful lot of assumptions made by inspectors all across the state that buildings that were built prior to 1991 met requirements of code and they really are not going to have any way to know,” he says. "I mean, who's going to have records of what was done in 1939?”

Inspectors do check on what are called operational requirements, like whether fire extinguishers are in working order. But requirements that apply to new construction, like sprinkler systems, won't be retroactively enforced on an older building.

State lawmakers could change that though. 

"That is a very slippery slope,” says Rob Ragnar, North Carolina's Chief Deputy Fire Marshal. 

"When you start to discuss commerce versus regulation and retroactivity applied to businesses, that has an impact on a business to make something retroactive, especially something as large as we're talking about, that would be devastating to some businesses in North Carolina,” he says.

State leaders haven't publicly shown much of an appetite for retroactive building code changes so far though. Earlier this year, five lawmakers told newspapers that they were awaiting a final accident investigation report before taking any action.