Hazardous chemical lists no longer public record in Texas

By Brett Shipp
Originally published June 12, 2014

DALLAS — For the past 30 years, federal law has required chemical makers and handlers to disclose what’s stored on premises. It’s called the Community Right To Know Act, and it has been at the core of the safety conversation since last year’s deadly fertilizer explosion in West, Texas.

But News 8 has learned that in the past few weeks, state health officials have stopped making those hazardous chemical records public.

On May 29, emergency responders in Athens, Texas, were faced with a potential disaster. An old storage building filled with explosive ammonium nitrate near the center of town was on fire. According to the Community Right To Know Act, the chemical contents of that building had to be publicly disclosed through what’s called a Tier II report.

According to the Environmental Protection Agency, “states and communities […] can use the Tier II information to improve chemical safety and protect public health and the environment.” In Texas, Tier II reports are kept on file at the Department of State Health Services and according to its web site, those reports are public information. All citizens “may ask for” them by simply filling out a request.

Yet, just days ago, following the ammonium nitrate building fire in Athens, when News 8 asked the Department of State Health Services for an updated Tier II report on the facility, department spokesperson Carrie Williams told us, “We’re not able to release the kind of information you’re requesting.”

Williams cited an Attorney General’s ruling from May 22, 2014, which denied public access to “Tier Two information […] because it reveals the location, quantity and identity of hazardous chemicals […] likely to assist in the construction of an explosive weapon.”

Emergency officials and responders are now the only ones in Texas able to access Tier II reports.

“It’s rather absurd. It’s going in the opposite direction of where we need to go after the explosion in West, Texas,” said Sean Moulton, director of open government policy with the Center for Effective Government in Washington, D.C.

Moulton says Texans should demand the Attorney General and State Health officials reverse course immediately.

“I just think it’s irresponsible and incredibly short-sighted to have officials involved in emergency planning responsible for keeping the public safe, and to say the public isn’t going to be involved in that process,” Moulton said.

We even checked with neighboring states, Louisiana, Oklahoma, and New Mexico. Officials in all three states say their Tier II hazardous chemical information has always been available to the public upon request.

So, again, why are those reports suddenly off limits in Texas?

When we tried to ask Attorney General Greg Abbott last week at the GOP Convention in Fort Worth, he excused himself, promised to return, but never did. Abbott also declined a formal, on-camera interview.

Attorney General spokesman Jerry Strickland later told News 8 the decision not to release the Tier II reports is being made by the Department of State Health Services. State Health Department Commissioner Dr. David Lakey also declined to interview with News 8. His office said it will not release any Tier II reports until the Attorney General issues another ruling.

Dallas County Judge Clay Jenkins says federal law is clear, and he’s confused as to why state officials would be risking public safety.

“You want to know where dangerous and potentially-explosive materials are,” Jenkins said. “You don’t want to put your child in a daycare right next to an explosive chemical warehouse.”

Or, as is currently being debated in Athens, Texas, whether to allow another ammonium nitrate storage facility to be built in the center of town.