Tales from the Front: July 29 Senate HELP Combustible Dust Hearing

Monday, August 11th

On July 29, 2008, Adele Abrams, ASSE’s Federal Representative, represented ASSE at the Senate HELP Employment and Workplace Safety Subcommittee hearing on combustible dust. There were two panels: Ed Foulke (OSHA) and John Bresland (CSB), followed by Amy Spencer (NFPA), Richard Prugh (Chilworth Technology, Inc.) and Graham Graham (Imperial Sugar Co.). Sen. Patty Murray, Sen. Johnny Isakson, Sen. Sherrod Brown, and guest Sen. Saxby Chambliss (R-GA) participated.

The hearing focused on the Imperial Sugar’s tragic explosion of Feb. 7, 2008, which killed 13 workers and injured many others seriously. OSHA has just fined the company $8.8 million (for the Georgia location where the accident occurred and their similar facility in Gramercy, LA), which included 218 citations for violations of 60 separate standards (some of which were General Duty Clause citations). OSHA has also referred the case to the US Department of Justice to evaluate for possible criminal prosecution. However, much of the hearing was also centered on OSHA’s failure to implement the Chemical Safety Board’s 2006 recommendations and its reluctance to initiate rulemaking for a combustible dust standard.

Chairwoman Murray noted that the Imperial incident brought attention to the issue but there have been 82 new dust explosions since the CSB report less than two years ago. She called OSHA “dangerously ineffective” and said that without a specific dust standard, enforcement is limited, as well as the ability to prevent future disasters. She pointed to the OSHA Grain Dust standard, which has been effective in reducing fatalities by 60% and which launched a safety education program for the industry. Ranking member Isakson mourned the lives lost in Georgia and said he has assured the families that this will not happen again. He said that he and Sen. Enzi joined Murray and Sen. Kennedy in asking OSHA and CSB to thoroughly investigate this incident and that OSHA’s findings show the employer was well aware of the hazards.

Ed Foulke's prepared remarks focused on the Imperial investigation and enforcement actions, and he recounted what OSHA has done prior to this on the issue, such as a safety and health information bulletin, a poster showing hazard controls, and additional efforts include a new National Emphasis Program, a special webpage, e-tools, and clarification that the Hazard Communication Standard applies to combustible dust. OSHA is planning to modify its housekeeping rule (1910.22) to be more explicit as to what is required.
Bresland called the Imperial accident “preventable” and discussed the range of substances that can explode and CSB’s 2006 report. He was an advocate of a new OSHA standard on this and use of NFPA 654. He also targeted the lack of training to educate workers on combustible dust hazards. Although NFPA standards are out there, he said without a specific OSHA standard, it is difficult for employers to know what they are subject to.

During questioning, Foulke said he was not aware of any critical hazards not cited because of a lack of a standard (Bresland pointed to hazard assessment, which could have been cited under something similar to PSM or the grain standard). Foulke added that 60 standards were cited and a dust-specific standard would have just made it 61, and that Imperial probably wouldn’t have complied with that, either. Murray countered that most of the cited standards do not relate to combustible dust hazards (they are for guarding, railings etc.). When asked if OSHA would do a standard, Foulke continued to side-step, but said that they have “not ruled it out” and that data gathered through the National Emphasis Program would be considered in determining affected industries and processes. He added that the NFPA standards are too long to incorporate and held up a stack of papers to demonstrate. He admitted that the only previous inspection of the Georgia facility was complaint-triggered and that no citations were issued at that time.

Foulke then became defensive and stated: “The responsibility is on the employer, not on OSHA to be a corporate safety and health officer. Some people like to pass the buck. OSHA had the emphasis program and webpage so if an employer claims he didn’t know of the hazard, that is not true.” He did state that OSHA plans to inspect all sugar plants this year through the NEP. Foulke said they haven’t incorporated NFPA’s standards but “they are referenced on the website.” Sen. Brown accused OSHA of going slow on combustible dust, despite evidence that the grain standard was effective and accused the Bush administrative of believing that “voluntary standards are the way to go.” Foulke denied being “slow” and said that they were looking at combustible dust but that there were five different NFPA standards and these reference 40 others. He also claimed that most deaths prevented by the grain dust standard involved engulfment hazards, not explosions.

Brown countered: “Your statements tell employers ‘you’re on your own’ and this has been the message from OSHA for the past 6 years. Listen to CSB and Congress, get more serious, and stop doing companies’ bidding!” Foulke said there was no such thing as a voluntary standard and repeated that Imperial probably would not have complied with any combustible dust standard. Brown and Foulke did some back-and-forth over OSHA’s denial of a ETS for diacetyl as well.

Bresland commented that the pharmaceutical industry has many dusts that could combust but they deal safely with this on a daily basis, and most of the CSB incidents involve low-value particles such as sugar. He said hazards can be dealt with appropriately through training, and having proper equipment. He said that while employers have responsibilities, they need guidance from regulations and a good starting point would be the Process Safety Management standard template. Foulke again stated that it was the employer’s responsibility, although OSHA will provide information and guidance. Foulke also hedged his answers to questions concerning compliance officer (CSHO) training on combustible dust, saying this was covered for new CSHOs in initial training and there is a new multi-day course that 100 inspectors have been through. Others have detailed training on PSM and HazMat. He would not commit to a timeline for a combustible dust standard (if OSHA decides to do one) but noted that the grain standard took 8 years. Bresland fielded some questions about MSDSs and the regulatory requirement for manufacturers to prepare these before products enter commerce. Isakson noted that the insurance company should be testifying since they are the big losers here, and he was curious what they looked at if they did inspections at Imperial.

Foulke again repeated that, “The Act intended to put responsibility on employers and a reasonable person would try to identify hazards in their industry. Insurers do audits for all industries.” Isakson asked Foulke to answer, for the record, how many times in the past 10 years OSHA received an employee complaint about dust accumulations at worksites.

Chambliss quizzed Foulke about relevant OSHA standards and he focused on housekeeping and electrical standards, then was puzzled when Chambliss pointed out that the trigger at Imperial was a bucket contacting another metal object (not an electrical heat source). Foulke guessed that better maintenance might prevent this and said it was the secondary explosion that really did the damage and that related to housekeeping. He said Imperial was cited for ventilation problems.

Finally, Murray asked Foulke about the “Secret Rule” that DOL sent to OMB on the risk assessment rule and why this took priority over other overdue rules such as cranes/derricks and combustible dust, and the other 38 items on OSHA’s agenda. Foulke said this was a DOL-wide rule, not OSHA, and that it could have been an internal rulemaking because it deals with DOL policy but they decided to publish it for comment. He said OSHA was “moving quickly” on its standards but cranes/derricks was extensive.

On Panel Two, Amy Spencer lead by discussing the NFPA 654 and related standards and saying there was no need for OSHA to reinvent the wheel. The consensus process ensures that state of the art practices and safeguards are updated on a three-to-five year cycle using balanced stakeholder committees. She said combustible dust gets comprehensive coverage through 7 standards and that the “40 standards” Foulke referenced are things like access/egress which employers already do. She said they NFPA standards boil down to three simple steps: hazard identification, hazard evaluation, and hazard control.
Richard Prugh provided technical details on dust explosions, and offered 5 solutions: (1) companies that produce, process or handle dusts and powers need to generate data concerning the explosibility properties of their materials; (2) the data that are obtained by these companies should be formally communicated within their organizations and to their customers through MSDSs; (3) using the explosion-hazard data, owners/operators should assess hazards that are associated with the processes operating in their plant; (4) based on dust explosion hazard assessments, owners/operators should implement preventive and explosion mitigating measures that will protect people and property; and (5) an objective of federal legislation should be to require owners/operators to adopt and abide by the above guidance toward solution of the combustible dust problem.

The final witness was Graham Graham, VP of Operations for Imperial Sugar. In testimony that was surprising, given the pending OSHA litigation, he said he joined the company in November 2007, and immediately inspected the Georgia and Louisiana facilities, finding them “dirty and dangerous.” He said it was clear a combustible environment existed and he warned senior management that some of them wouldn’t be going home, but would be going to the morgue, if conditions were not improved quickly. He said fire fighting equipment was rotting, there were no fire drills, and doors were missing from electrical equipment, while sugar dust was waist-high in some areas. He ordered work to begin at once to fix the violations and while some progress was made, it was not enough to prevent this disaster. He did get one manager fired prior to the explosion, but then was told that he was “excessively eager” in addressing these problems and was “ruining relationships” and had to make a peace offering to managers. He was then cut out of several senior meetings and never got to deliver a report he prepared, prior to the explosion. He is now trying to work with OSHA to clean up the remaining facility and deal with the citations. He pledged his cooperation in working with the Senate on this. He also submitted e-mails documenting his actions prior to the explosion.

During questioning, Graham noted that the quantity of problems was such that they could not all be addressed in the 8 weeks between when he was hired and the accident, but he did warn of the hazard to 18 managers at one meeting in January 2008. Chambliss attacked Graham, saying he did not find him credible since he was still working for Imperial. Graham responded that he was committed to fixing what he could and protecting workers from other events such as this. Chambliss suggested that he could have told them to shut the plant down and clean it up, and Graham responded that he did do that and was told to temper his enthusiasm. He was prevented from presenting his presentation on this that had been planned for a week before the accident.

Prugh was asked several technical questions dealing with ventilation controls. He added his belief that a separate OSHA standard is needed and that PSM would be a good model. Spencer relayed NFPA’s history of working with OSHA in the past, the training they provide to OSHA personnel and to private industry, and state fire officers. She was asked by Murray if there was a “one size fits all” solution and she responded that adoption of NFPA 654 would reference the others for specific materials.