Last week, the House of Representatives narrowly passed the Farm Bill. And a little noticed sentence in this this gigantic piece of legislation threatens the lives of those living near chemical facilities and the employees that work within them.
What does the Agriculture bill have to do with chemical plant safety? As a gift to agricultural retailers, it contains language that would permanently stop OSHA from covering certain hazardous chemical facilities under its Process Safety Management (PSM) standard.
The West Fertilizer Disaster
Five years ago a fire broke out at the West Fertilizer company in West, Texas. Emergency responders rushed toward the facility which contained 40 to 60 tons of fertilizer grade ammonium nitrate and several tanks of anhydrous ammonia. Twenty minutes later a massive explosion ripped through the building killing 12 responders and three others, injuring 252 and damaging or destroying 500 buildings. A 22-unit apartment complex and a 145-bed nursing home across the street were destroyed. Two of the victims who died lived at the apartment complex and another lived at the nursing home.
The West Fertilizer explosion impacted the country like no other (non-coal mine related) chemical plant disaster in recent memory — perhaps because it wasn’t just a workplace disaster — it was a community catastrophe. President Obama spoke at the funeral, and on August 1, 2013, as a result of the West explosion and other recent chemical plant incidents, issued Executive Order 13650 “Improving Chemical Facility Safety and Security.”
The President’s Executive Order told OSHA, EPA and Homeland Security to cooperate more, update their chemical safety regulations and it also told OSHA to identify any changes that needed to be made in the “retail exemption” to the PSM standard.
What was the retail exemption?
The PSM standard exempts “retail facilities,” but does not define what it means by a “retail facility.” The preamble to the standard suggested that OSHA intended the retail exemption to cover facilities that sold small packages of chemicals — like gas stations or hardware stores. But shortly after the PSM standard was issued, OSHA issued an “interpretation” defining a retail establishment as one that sold more than 50% of its highly hazardous materials to “end users.” So no matter how much of a hazardous material a plant stored, if one dollar more than 50% was sold to farms (which are defined as “end users”) or backyard gardeners, the facility was exempt from PSM. Under that definition, West Fertilizer was a “retail facility” even though it stored large amounts of highly hazardous chemicals.
After the explosion, the nation learned that OSHA had not inspected West since the 1980’s because even though OSHA was conducting a chemical facility National Emphasis Program which focused inspections on the nation’s thousands of PSM-covered facilities that stored or used large amounts of hazardous chemicals. Why wasn’t West, which stored 300,000 pounds of ammonium nitrate and two vessels containing tens of thousands of gallons of anhydrous ammonia on site, not covered by OSHA’s chemical facility standard? Because the facility fell under OSHA’s retail exemption. It sold most of these chemicals to farmers.
Ironically, even if the facility had been covered under PSM, the ammonium nitrate that caused the massive explosion is not covered under PSM — but the anhydrous ammonia would have been covered. Luckily, the anhydrous ammonia tanks suffered little damage during the explosion and only a small amount of leakage. But had the facility been covered by PSM, and fallen under the NEP, and had OSHA inspected the facility, it’s likely they may have also identified the problems with the facility’s storage of ammonium nitrate.
The White House — and President Obama — were not pleased that it had been almost 30 years since the plant had been inspected by OSHA and the President’s Executive Order told OSHA to address the problems in the retail exemption. In 2015 OSHA issued a new interpretation, clarifying the definition of “retail” to bring it into compliance with the original intent of the standard. Facilities like West which contained large amounts of anhydrous ammonia would then be covered by PSM.
But this move that made communities surrounding these facilities safer angered the agriculture industry, and specifically the Agricultural Retailers Association which successfully lobbied Congress to stop OSHA from regulating such establishments. They also filed a lawsuit and a court overturned OSHA’s interpretation — not on the substance of what OSHA did, but on the process that OSHA went through to make the change.
Although the original definition of retail facilities was made in an “interpretation” without going through lengthy notice and comment rulemaking, the court said that OSHA was not allowed to then change that definition without going through the whole regulatory process. The ARA was so pleased that it gave its Legislator of the Year award to Oklahoma Senator James Lankford for leading the effort to defend “the industry’s freedom to operate” — as well as their freedom to blow up workers, emergency responders and towns.
In accepting the award, Lankford said that “Our Oklahoma farm communities rely on their local agricultural retailers to meet their farm business needs. In this never-ending work, agribusinesses should not have to battle their federal government over-burdensome regulatory guidance.”
Happily, OSHA was already in the process of updating its Process Safety Management standard and reconsideration of the definition of a retail establishment is part of that reconsideration. Although that standard has been put on the back burner by the Trump administration, it will eventually see the light of day — most likely during the next Democratic administration.
Congress Steps In
But not so fast. Just to put a nail in the coffin, the ARA succeeded in convincing the House of Representatives to add language to the Farm Bill ordering the Secretary of Labor to write the bad retail facility definition into the Process Safety Management Standard within six months. Instead of an “interpretation,” it would actually be part of the regulation.
Now, this language would have no immediate effect as OSHA is already enforcing the old definition anyway and so far similar language does not exist in the Senate bill.
But if the ARA and agriculture lobby succeed in permanently codifying the old “50 percent definition” or if OSHA fails to fix the definition when it updates the PSM standard, the “burden” of the next workers and residents that are killed when a “retail facility” detonates will be on their hands.