Photo: Smiley N. Pool, Staff / Houston Chronicle Photo: Smiley N. Pool, Staff / Houston Chronicle Photo: JOHN DAVENPORT, STAFF / SAN ANTONIO EXPRESS-NEWS Photo: Winslo Lopez, Freelancer / For The Express-News Photo: Bob Owen, Staff / San Antonio Express-News Photo: TOM REEL Photo: TOM REEL, Staff / San Antonio Express-News Photo: TOM REEL, Staff / San Antonio Express-News Photo: TOM REEL Photo: TOM REEL Photo: Bob Owen, Staff / San Antonio Express-News Photo: Rod Aydelotte, Staff / Waco Tribune Herald

WASHINGTON — A little-known provision tucked into the Farm Bill could exempt the entire chemical manufacturing industry from key workplace safety rules and jeopardize workers’ health, according to one of the government agencies charged with overseeing safety in the chemical industry.

Officials from the Department of Labor say the provision would create a broad exemption from Occupational Safety and Health Administration standards for managing highly hazardous chemicals, and could have “the unintended consequence” of allowing a large chemical facility to skirt the rules by claiming to be a retail store.

“This could effectively eliminate the entire chemical manufacturing sector from coverage of the (OSHA) standard, jeopardizing the safety and health of chemical facility workers,” Labor Department officials wrote, in documents obtained by the Houston Chronicle and San Antonio Express-News.

Five years ago, an explosion at a West, Texas fertilizer plant killed 15 people and injured more than 200 people.

In the aftermath of the disaster, OSHA tried to clarify existing rules to make sure facilities similar to the one in West would face more scrutiny. A Dallas Morning News investigation in 2013 found there were more than 70 sites like West Fertilizer Company in Texas alone.

A lawsuit by the fertilizer industry stopped OSHA’s attempts, beginning a push and pull between lobbyists and chemical safety advocates on the right way to regulate these potentially dangerous facilities. After the 2016 election, the Trump administration swept into office backed by a GOP majority in Congress looking to roll back the reforms, which had been initiated during the Obama presidency.

The new provision, nestled into the massive Farm Bill, which passed the House in June, is being hashed out in a conference committee with the Senate, which approved its own bill without the OSHA exemption.

Congress is fast running out of time to meet a Sept. 30 deadline for reaching agreement on the five-year, $430 billion bill, struggling for agreement on key provisions, among them insistence by House Republicans on adding a work requirement to the Supplemental Nutrition Assistance Program, the government’s biggest food aid program.

Agriculture retailers’ group led effort

The fate of the proposed OSHA exemption may not be decided any time soon. Sen. Pat Roberts, R-Kan., who chairs the Senate Agriculture Committee, worried aloud this week that negotiators would not meet the end of September fiscal year deadline and that it would be a “tall order” to get the legislation passed before the election.

Opponents say there’s an ulterior motive to putting the new chemical safety provision in the farm bill instead of a separate piece of legislation.

“They’re trying to codify bad language into law so a future administration would be unable to do anything about it,” said Katie Tracy, policy analyst for the Center for Progressive Reform, “They’re putting it in the Farm Bill where no one will ever see it.”

The Agriculture Retailers Association, which represents companies big and small, spearheaded the drive for the exemptions written into the Farm Bill.

Kyle Liske, the association’s public policy director, says the Obama-administration OSHA regulations would cost his industry more than $100 million.

Liske points out that retailers already comply with regulations from multiple government agencies, including the Environmental Protection Agency. He says the more stringent OSHA rules are not necessary, and retailers should be exempted from them. Besides, he said, the explosion in West was fueled by ammonium nitrate, which is not regulated by OSHA. The stricter requirements would apply to a different chemical entirely, anhydrous ammonia.

It’s like “regulating trucks in response to a rail accident. It simply doesn’t make sense,” he said.

The argument over how OSHA distinguishes between retailers and manufacturers has been at the heart of resistance to the new rules.

Five years later, new safety rules in limbo

An investigation by the Bureau of Alcohol, Tobacco, Firearms and Explosives determined the fire leading to the explosion at West was an act of arson. The Chemical Safety Board’s investigation revealed a laundry list of problems at the facility; highly combustible fertilizer was stored in wooden bins and was too close to other hazardous chemicals, chemicals would frequently mix and cross contaminate, and the site was too close to homes and school in town.

As part of the overhaul of chemical safety rules ordered by Obama, OSHA issued a “guidance document” that was supposed to clarify which facilities would be considered retailers, and would therefore be exempt.

The fertilizer industry challenged OSHA’s guidelines in court, and won. The federal government was back to square one.

Consequently, little has changed with OSHA regulations since the West explosion and its fallout. It’s still unclear who is considered a retailer under OSHA process safety regulations. The Chemical Safety Board’s recommendation to consider ammonium nitrate a hazardous chemical has not been considered by OSHA or Congress.

CHRONICLE INVESTIGATION: How an industry thwarted Obama, even after tragedy

Chemical safety advocates are worried that’s the way it will stay if the House provision makes it into law.

“They’re trying to make sure that OSHA never has jurisdiction over places like the facility in West, “ said Rena Steinzor, a University of Maryland law professor who tracks chemical regulations. “If there’s not a flashlight shining on this dark corner, an explosion like West is going to happen again.”

She said many of the existing regulations are not enough. For example, West Fertilizer Company had not seen an OSHA inspector in more than a decade before the explosion.

Jordan Barab, OSHA’s deputy assistant secretary in the Obama administration, says that approval of the OSHA provision adopted by the House would be bad for worker safety.

“If this is successful, it would be the first case of an industry saying, ‘We understand this is important, but we want to be exempted,’ This really is a precedent you don’t want to set,” Barab said.