Congress Revisits Farm Chemical

Since the Oklahoma City bombing in 1995, the fertilizer industry has been relying on voluntary efforts to keep ammonium nitrate, the primary component of the 5,000-lb bomb, out of the hands of terrorists. But faced with growing concern over potential legal liabilities and a desire to ensure the chemical's continued availability in agriculture, fertilizer producers and distributors have taken the unusual step of asking Congress to impose federal regulations.

Ammonium nitrate is highly valued by U.S. farmers for its uses on pasturelands and for citrus and specialty crops. In 2004, nationwide consumption of the agricultural fertilizer totaled 1.5 million tons. But ammonium nitrate also has a particularly dangerous attribute: It can be combined with various fuels to create powerful explosives. "This is not recently discovered knowledge," says Eddie Funderburg, a soil and crops specialist at the Samuel Roberts Noble Foundation, an agricultural research group in Ardmore, Okla. "Ammonium nitrate has been used for this purpose for many years, and it is commonly used as an explosive in the construction industry."

Ammonium nitrate, mixed with fuel oil, was the primary ingredient in the truck bomb that took the lives of 168 people, injured more than 400, and destroyed the Alfred P. Murrah Federal Building in Oklahoma City, Okla., on April 19, 1995. The fertilizer was also used in more recent international terrorist attacks, including the bombings in Bali, Indonesia, and Istanbul, Turkey. The Office of Technology Assessment, the now-defunct research arm of Congress, warned of the potential danger back in 1980, acknowledging that an effective bomb could be made out of ammonium nitrate and fuel oil "if the criminal has adequate time, skill, knowledge, and motivation."

In an attempt to deter terrorist truck bombings, a number of countries, including Colombia, the Philippines, and many members of the European Union, have either banned ammonium nitrate or placed restrictions on its sale and use. In the U.S., several states-New York, New Jersey, California, Oklahoma, Michigan, South Carolina, and Nevada-have enacted regulations to restrict the sale of the widely used fertilizer. But little has been done at the federal level.

In the aftermath of the Oklahoma City bombing, bills were introduced in Congress to require that all explosives manufactured and sold in the U.S. contain tracers, or identification taggants, to help law enforcement authorities track the materials back to the point of sale. The gun lobby, along with the fertilizer industry, opposed the plan, and it was subsequently reduced to a federal study. The National Rifle Association asserted that taggants could pose a safety risk to hunters by destabilizing gunpowder and causing spontaneous combustion.

Fertilizer producers argued that adding taggants to ammonium nitrate would do nothing to prevent criminal misuse of the product. "A taggant is a postaccident step rather than a preventive step," says Kathy Mathers, vice president for public affairs at The Fertilizer Institute (TFI), the industry's Washington, D.C.-based trade association. "That, combined with the fact that taggants are small plastic pieces that you hate to see added with natural fertilizer to the soil, was a nonstarter for us. The real focus should be on making sure the product doesn't get into the wrong hands and isn't used illegally, rather than saying afterward, 'Who can be sued?' "

The taggant idea was shelved after a panel of the National Research Council (NRC) concluded in 1998 that the additives "are not yet practical enough for broad use" in the U.S. After examining a variety of technologies for marking explosives, the committee recommended against broad-based implementation of a taggant program. "Everyone agrees that if there were an option that could prevent terrorist bombings at low cost, it would be quickly implemented," said Marye Anne Fox, cochair of the committee that wrote the NRC report and now chancellor of the University of California, San Diego. Unfortunately, she added in a statement on the report, the existing options, in addition to being expensive, are not effective across-the-board.

Despite considerable international efforts to make fertilizer-grade ammonium nitrate less explosive or to render it inert, the NRC committee determined that there is no practical method that would make the material considerably less explosive without seriously affecting its value as a fertilizer. Its report said voluntary commercial controls and regulatory action offer the best means of reducing the threat from illegal bombings until better technologies are developed.

In the absence of federal legislation, the Justice Department's Bureau of Alcohol, Tobacco, Firearms & Explosives and state governments have been working with fertilizer manufacturers, dealers, and farmers on voluntary programs to prevent ammonium nitrate from getting into the hands of criminals. The federal agency and TFI have produced similar pamphlets outlining how those who handle fertilizer can be on guard against suspicious activity. The pamphlets advise businesses to maintain secure sites for storage and distribution, closely track how much product they have and guard against theft, keep records of all sales, and report any unusual interest to law enforcement officials.

After the Sept. 11, 2001, terrorist attacks, TFI's board of directors also endorsed a voluntary security code of management practices, which calls on member facilities to conduct vulnerability assessments and to plug any gaps in security. "We used both outside law enforcement experts and internal resources to identify vulnerabilities, implement countermeasures, and develop security plans," says Jim Schellhorn, director of environmental health and safety for Terra Industries, a major international producer of nitrogen fertilizers. "All of our facilities now have active security plans." He says all product trucking companies and drivers are preapproved, all deliveries to Terra facilities are checked at the gate, and criminal background checks are now required for contractors as well as Terra employees. "We have also recently implemented a system to ensure delivery receipts for all truck shipments of ammonium nitrate from Terra-owned facilities," Shellhorn says.

Nevertheless, members of Congress have been growing increasingly concerned that voluntary efforts by industry to safeguard ammonium nitrate are simply inadequate. Rep. John Linder (R-Ga.), chairman of the Homeland Security Subcommittee on Prevention of Nuclear & Biological Attack, noted at a Dec. 14, 2005, hearing that "ammonium nitrate has been deliberately abused and unfortunately has become known as a popular terrorist tool." Rep. James Langevin (D-R.I.) said the risk that the farm chemical will be used by a terrorist in an improvised explosive device must be confronted and reduced. "While some states should be commended for taking the initiative, I cannot help but think that the job of securing ammonium nitrate should be a federal concern."

With the support of the fertilizer industry, legislation has been introduced in both the House and the Senate that would direct the Department of Homeland Security (DHS) to issue regulations requiring registration of all facilities that handle ammonium nitrate and record keeping on all purchases. The registration requirement would be similar to what farmers and pesticide applicators go through to buy restricted-use insecticides. TFI President Ford B. West says the bill is "aimed at keeping ammonium nitrate securely in the hands of agricultural retailers and farmers." The Secure Handling of Ammonium Nitrate Act (H.R. 3197) would establish "commonsense, uniform federal rules for securing this valuable fertilizer from those with criminal intent and help to ensure its continued availability to the nation's farmers," according to the industry official.

"We're looking at a very workable proposal that does what some states are already doing to regulate the product and takes it national and sets a uniform system, which in our mind is a lot better than a patchwork of different state regulations," adds TFI's Mathers. "With this kind of structure in place, we are much more likely to ensure that the product stays in the right hands and also stays available to farmers and isn't regulated out of business," she says.

At its core, the bipartisan bill would authorize DHS to regulate the handling and purchase of ammonium nitrate to prevent its use as a weapon of terror. The legislation was introduced in the Senate on May 26, 2005, by Sens. Thad Cochran (R-Miss.), Mark Pryor (D-Ark.), C. Saxby Chambliss (R-Ga.), and Pat Roberts (R-Kan.). A companion measure was introduced in the House on July 1, 2005, by Reps. Curt Weldon (R-Pa.) and Bennie G. Thompson (D-Miss.).

The bill would direct DHS, working with the Department of Agriculture, to develop regulations to create a registry of those who handle ammonium nitrate. Only facilities and people registered with DHS would be able to legally access the fertilizer. Anyone purchasing ammonium nitrate would be required to have a registration number. Retailers would be required to keep records of ammonium nitrate sales for at least three years, including the purchaser's name, address, telephone number, registration number, the date of sale, and the quantity sold. The act's enforcement provisions provide DHS with the authority to inspect facilities during normal business hours to determine whether ammonium nitrate is being handled properly. Facilities found to be out of compliance would be issued a "stop sale" order, and violators would be subject to a civil penalty of up to $50,000 per violation.

At the December hearing, Linder said the bill is aimed at affecting the actions of would-be terrorists, not the average farmer. "Nor is it intended to place an undue burden on American farmers or the agricultural industry at large," he explained. "It simply allows the federal government to adopt a fair and proportionate response, which will allow ammonium nitrate to continue to be available to legitimate users who are not of concern while deterring its acquisition by those who wish to do harm."

Although fertilizer producers and distributors have long believed that their voluntary efforts to keep ammonium nitrate secure were sufficient, Carl Wallace, plant manager for Terra Mississippi Nitrogen of Yazoo City, Miss., told the subcommittee that industry officials are now convinced that a federal regulatory scheme is needed "in recognition of the changing security landscape." In July 2005, a bulletin from the Federal Bureau of Investigation warned of the growing threat from truck bombs in the U.S. and of terrorist organization al Qaeda's frequent use of ammonium nitrate as a bomb component. Also that month, 3,000 lb of ammonium nitrate was stolen from a Royster-Clark fertilizer plant in Winston-Salem, N.C.

"We at Terra believe that the provisions contained in H.R. 3197 further strengthen ammonium nitrate security by providing a uniform national system for registration and record keeping," Wallace testified. "We do not believe this legislation would be overly burdensome to handlers of ammonium nitrate or our farmer customers. By giving DHS the authority to work with state departments of agriculture to create, maintain, and enforce the program, this legislation uses an existing and effective state fertilizer regulatory system to further secure ammonium nitrate."

William O'Neil, testifying for the Agricultural Retailers Association, noted too that the bill would "provide some assurances for the industry against any potential liabilities that would otherwise exist without a federal regulation system in place."

Several companies, including J. R. Simplot, Agrium, and Potash Corp. of Saskatchewan, have recently stopped making ammonium nitrate to reduce potential legal exposure related to security concerns.

In announcing its decision last June, Simplot AgriBusiness President William Whitacre stated that, despite federal, state, and industry initiatives, the "growing climate of concern about ammonium nitrate" had resulted in the decision to remove the product from the company's fertilizer line. "While we applaud these efforts, we think the best way for Simplot to prevent possible misuse of this product is to no longer make it available to the marketplace. This action is an unfortunate reality of the times we live in," Whitacre said.

TFI's Mathers says it is "up to the marketplace" to determine who leaves and who stays in the business. "There is still strong farmer demand for ammonium nitrate. Farmers are very keen on ensuring that it stays available," she says. "We know that there is a market for it, so preserving that market, no matter where the product comes from, is of paramount importance to us."

Advocates believe the legislation, which enjoys bipartisan, heavyweight support, has a better-than-even chance of being enacted into law this year. In the Senate, cosponsors Cochran, Roberts, and Chambliss chair the appropriations, intelligence, and agriculture committees, respectively. On the House side, Weldon is the vice chairman and Thompson is the ranking member of the Homeland Security Committee. The bill is also rather rare, Weldon pointed out at the December hearing. "This is a highly unusual situation, in that an industry has voluntarily approached Congress and asked to be regulated," he remarked. "I applaud the fertilizer industry for their responsible approach to safeguarding the use of their product. This bill would help prevent another tragedy like the Oklahoma City bombing from happening again."