In April 2013, a major chemical storage and distribution facility in West, Texas exploded. The West Fertilizer Company was set ablaze as a result of arson, but it was how the company stored the chemicals that made the explosion so tragic. Fifteen people died, nearly 200 were injured, and over 150 buildings in the community were destroyed.
Although the cause was arson, the massive explosion spurred then-President Obama to sign an executive order, which required OSHA to reexamine the retail exemption in its chemical safety standards.
The Retail Exception
OSHA’s standards require chemicals to be stored in a certain manner, but “retail facilities” are exempt rom those requirements. The intent was for gas stations, hardware stores and similar stores to be exempt, but the term “retail facility” was not actually defined within the rules. So, OSHA issued an interpretation stating that “retail facility” meant any facility that sold over 50% of its product to end users (e.g. farmers). Thus, even a massive storage facility, like the one in West, Texas, could be exempt from OSHA safety standards by selling 51% of its supply to farmers.
After the explosion in West, Texas, because of President Obama’s Executive Order, OSHA redefined its “retail exception” in order to align it with the Agency’s original intent. Chemical companies immediately filed a lawsuit, however, and they won. The success of the chemical companies was not due to the fact that OSHA’s new interpretation was unlawful but because OSHA failed to follow proper procedure in issuing it.
Current Farm Bill
With the knowledge that OSHA will eventually redefine its exception and follow the proper procedures so that it is enforceable, massive chemical companies lobbied Congress to include a passage within the current farm bill that makes the 50% retail exemption law. What this means is that OSHA would lose its ability to amend its retail exemption in order to prevent massive storage and distribution centers from being able to skirt the safety regulations.
Congress sneaking this provision into its Farm Bill is nothing new. Legislators attempt to do this all the time in order to get contentious laws passed with minimum public outcry or controversy. If the Farm Bill, which was passed by the House in June and is now being debated within the Senate, passes, citizens who live near or work for massive chemical plants may be at risk. According to the Dallas Morning News, there are 70 such plants in Texas.
While it doesn’t look like the Senate will pass the Farm Bill ahead of its September 30 deadline, that does not mean we won’t see additional efforts from chemical company lobbyists to get a similar provision passed in the future. If a similar provision does get passed, OSHA will essentially lose its jurisdiction over all major chemical plants. OSHA hadn’t inspected the chemical plant in West, Texas in nearly 30 years prior to the explosion, and that alone is a reason for Congress to reexamine OSHA and its enforcement of those laws.
