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.”
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:
- “We found serious deficiencies in the company’s process safety management program.” (Bayer CropScience Facility explosion that killed two workers, 2008)
- “Refinery Had Longstanding Process Safety Deficiencies.” (U.S. Chemical Safety Board Concludes “Organizational and Safety Deficiencies at All Levels of the BP Corporation” Caused March 2005 Texas City Disaster That Killed 15, Injured 180.)
- “Borden Chemical did not implement 1992 PHA (process hazard analysis as required by OSHA’s PSM standard) recommendations.” (Formosa Plastics Vinyl Chloride Explosion that killed five workers in 2004.)
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.