Safety and OSHA News

Fertilizer plant explosion: Did facility have safety exemption?

Imagine being able to get an exemption from an OSHA regulation due to who buys your product. The fertilizer plant in Texas that recently exploded, killing 15 people, may have been doing just that.

The West Chemical and Fertilizer plant near Waco, Texas, may have been claiming an exemption to OSHA’s Process Safety Management (PSM) standard, according to reporting done by The Center for Public Integrity (CPI). OSHA’s PSM standard requires companies to properly manage hazards associated with processes using highly hazardous chemicals.

The exemption allows “retail facilities” to be exempt from PSM. To be considered a retail facility, more than half of the establishment’s income must be obtained from direct sales to end users. In the case of a fertilizer manufacturer, that could be accomplished by selling directly to farms.

This exemption was written into OSHA’s PSM standard as it appeared in the Federal Register (FR) on Feb. 24, 1992.

On top of that, The Fertilizer Institute, which bills itself as “the leading voice in the fertilizer industry,” asked OSHA to clarify that part of the PSM standard, shortly after it was published in the FR. In June 1992, OSHA issued a Standard Interpretation Letter, addressed to the Fertilizer Institute, confirming the exemption.

By being exempt from PSM, the West fertilizer plant wasn’t subject to OSHA inspections targeted to facilities covered under the standard.

And here’s the catch-22: OSHA doesn’t check on the validity of an exemption unless it inspects the site. Of course, the site was less likely to be inspected because of the exemption.

OSHA is also looking into whether the West facility was exempted from keeping injury and illness logs because it claimed it had fewer than 10 full-time employees. Once again, this would potentially subject the plant to fewer inspections. OSHA uses its Site Specific Targeting program to choose facilities to inspect because their OSHA logs show they had significantly more injuries and illnesses than the industry average.

Investigations into fertilizer plant explosion ongoing

What does the Fertilizer Institute think about the retail exemption in light of the explosion and deaths?

The institute notes the cause of the explosion hasn’t been determined. An OSHA inspection typically takes five to six months. But, the institute also says, “We will re-examine our stance if necessary when the report on the cause is made final.”

Besides being investigated by OSHA, the U.S. Chemical Safety Board (CSB) has also sent investigators to the scene.

Over its history, the CSB has investigated many of the worst industrial incidents in the U.S. involving worker deaths and serious injuries. What’s a common cause of these incidents? Deficient Process Safety Management:

Given that history, there’s a high likelihood the CSB’s report on the fertilizer plant explosion will contain recommendations regarding adherence to OSHA’s PSM standard.

What do you think about the so-called “retail exemption” to OSHA’s PSM standard? Let us know in the comments below.

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  • Jerry

    The retail exemption should not be allowed when a site stores and uses potentially dangerous materials. How a site sells its product and how many full time employees should not be factors when it comes to safety. Yes, a greeting card store that has 8 FTE’s and has NO dangerous chemicals should be exempt.

    • Jon

      Why should the greeting card store be exempt? Do you not care about the safety of their employees?

  • Kowalski

    This discussion is largely moot, as EPA’s RMP rules, almost a clone of PSM, do not exempt a fertilizer or agricultural ammonia retailer. Therefore it doesn’t matter that PSM doesn’t apply, because West must implement the same sorts of preventive measures under RMP.
    Regardless of RMP’s slightly different applications, the PSM retail exemption is necessary to avoid burdening retail stores with PSM compliance. Home Depot, as examples, would likely qualify for PSM due to the quantities of flammable materials on site, and would have to hire extra staffers just to comply. It’s important retailers can avoid getting lost in the morass of rules that is PSM.
    Rarely would the retail exemption allow a legitimate manufacturing plant to slip through PSM compliance. It’s unusual to find a facility engaged in manufacturing which sells half its products to the end user. I’ve never seen one in 25 years in safety – in my view the West plant is the exception, not the rule.
    There also are the currently very low compliance levels of PSM to consider. My background includes being on OSHA’s first PSM team, doing PSM inspections, and today working as a consultant with several companies under PSM. Having not found ONE plant even halfway to PSM compliance, I’m pretty sure it wouldn’t have made a difference at West either – it would have been just another item low on the To Do list.

    • interested

      Excellent and thoughtful response thank you for the education on this subject. My gut tells me you are 100% correct.