Farm Bill Drops OSHA Language that Would Have Endangered Chem Plant Workers

Jordan Barab

Jordan Barab Former Deputy Assistant Secretary of Labor, OSHA

Workers in chemical facilities and those living nearby can sleep easier after the US Congress declined to include language in the long-awaited Farm Bill that would have forced OSHA to write regulatory language into the Process Safety Management (PSM) standard that would have threatened the lives of chemical plant workers and those living nearby.

PSM regulates worker safety in the nation’s chemical facilities and refineries.

Avid Confined Space readers may recall that after the catastrophic West Fertilizer explosion in 2013 that killed 15 and destroyed much of the city of West, Texas, Americans realized that facilities like West Fertilizer, that used and stored large quantities of highly hazardous chemicals, had fallen through a loophole in the PSM standard that exempts “retail facilities” from coverage.

“Retail” had not been defined in the PSM standard when it was issued in 1992, and although the standard clearly envisioned only facilities like gas stations and hardware stores to be exempted, OSHA had issued a flawed definition of “retail facility” that exempted more risky facilities like West Fertilizer from PSM. The result was that West Fertilizer was not covered by PSM and had not been inspected by OSHA since the 1980s. 

After the West explosion and other chemical plant disasters, President Obama issued an Executive Order which instructed OSHA to change the definition of “retail” to something that made more sense.  OSHA issued a memo re-interpreting the definition of “retail,” but that change was overturned by the U.S. Court of Appeals for the District of Columbia Circuit which told OSHA it had to go through full notice and comment rulemaking before making the change. OSHA then added the definition of retail to the issues being considered in its ongoing modernization of the PSM standard which currently languishes on OSHA’s “long term” regulatory agenda.

Under pressure from the Agricultural Retailers Association (ARA), which represents businesses that sell farm chemicals, as well as the Fertilizer Institute, House Republicans added language to the Farm Bill that would have required OSHA to write the old, flawed definition into the PSM standard. That language, however, ran into strong opposition in the Senate and from groups like the United Steel Workers union and the National Safety Council.

Even OSHA opposed that language because it “would create enforcement problems for OSHA” and “effectively eliminate the entire chemical manufacturing sector from coverage under the PSM standard, jeopardizing the safety and health of chemical facility workers.”.

Happily, the Conference Report agreed to earlier this week by the Senate and the House contains no such language.  The ARA is not pleased. OSHA will now consider a new definition of the retail exemption, taking into account public input, when the agency gets around to proposing an updated PSM standard. 

Meanwhile,  two OSHA regions are conducting emphasis programs focusing on the hazards of ammonium nitrate, the chemical that caused the West explosion, as well as agricultural anhydrous ammonium.  The emphasis programs began on October 1 with a three-month period of education and prevention outreach to encourage employers to bring their facilities into compliance with OSHA standards before the enforcement phase begins. More information can be found on OSHA’s  Fertilizer Industry Guidance on Storage and Use of Ammonium Nitrate webpage and another on its anhydrous ammonia standards, as well as its free consultation services.

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Reposted from Confined Space

Posted In: Allied Approaches

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