[House Hearing, 110 Congress]
[From the U.S. Government Publishing Office]
H.R. 5522, THE COMBUSTIBLE DUST EXPLOSION
AND FIRE PREVENTION ACT OF 2008
=======================================================================
HEARING
before the
COMMITTEE ON
EDUCATION AND LABOR
U.S. House of Representatives
ONE HUNDRED TENTH CONGRESS
SECOND SESSION
__________
HEARING HELD IN WASHINGTON, DC, MARCH 12, 2008
__________
Serial No. 110-82
__________
Printed for the use of the Committee on Education and Labor
Available on the Internet:
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COMMITTEE ON EDUCATION AND LABOR
GEORGE MILLER, California, Chairman
Dale E. Kildee, Michigan, Vice Howard P. ``Buck'' McKeon,
Chairman California,
Donald M. Payne, New Jersey Senior Republican Member
Robert E. Andrews, New Jersey Thomas E. Petri, Wisconsin
Robert C. ``Bobby'' Scott, Virginia Peter Hoekstra, Michigan
Lynn C. Woolsey, California Michael N. Castle, Delaware
Ruben Hinojosa, Texas Mark E. Souder, Indiana
Carolyn McCarthy, New York Vernon J. Ehlers, Michigan
John F. Tierney, Massachusetts Judy Biggert, Illinois
Dennis J. Kucinich, Ohio Todd Russell Platts, Pennsylvania
David Wu, Oregon Ric Keller, Florida
Rush D. Holt, New Jersey Joe Wilson, South Carolina
Susan A. Davis, California John Kline, Minnesota
Danny K. Davis, Illinois Cathy McMorris Rodgers, Washington
Raul M. Grijalva, Arizona Kenny Marchant, Texas
Timothy H. Bishop, New York Tom Price, Georgia
Linda T. Sanchez, California Luis G. Fortuno, Puerto Rico
John P. Sarbanes, Maryland Charles W. Boustany, Jr.,
Joe Sestak, Pennsylvania Louisiana
David Loebsack, Iowa Virginia Foxx, North Carolina
Mazie Hirono, Hawaii John R. ``Randy'' Kuhl, Jr., New
Jason Altmire, Pennsylvania York
John A. Yarmuth, Kentucky Rob Bishop, Utah
Phil Hare, Illinois David Davis, Tennessee
Yvette D. Clarke, New York Timothy Walberg, Michigan
Joe Courtney, Connecticut [Vacancy]
Carol Shea-Porter, New Hampshire
Mark Zuckerman, Staff Director
Vic Klatt, Minority Staff Director
C O N T E N T S
----------
Page
Hearing held on March 12, 2008................................... 1
Statement of Members:
Altmire, Hon. Jason, a Representative in Congress from the
State of Pennsylvania, prepared statement of............... 57
Barrow, Hon. John, a Representative in Congress from the
State of Georgia........................................... 5
Prepared statement of.................................... 7
Kingston, Hon. Jack, a Representative in Congress from the
State of Georgia........................................... 9
Prepared statement of.................................... 10
McKeon, Hon. Howard P. ``Buck,'' Senior Republican Member,
Committee on Education and Labor, prepared statement of.... 39
Miller, Hon. George, Chairman, Committee on Education and
Labor...................................................... 1
Prepared statement of.................................... 4
Questions for the record submitted to Mr. Foulke......... 58
Woolsey, Hon. Lynn C., a Representative in Congress from the
State of California, prepared statement of................. 57
Statement of Witnesses:
Foulke, Hon. Edwin G., Jr., Assistant Secretary, Occupational
Safety and Health Administration........................... 18
Prepared statement of.................................... 20
Responses to questions for the record.................... 60
Miser, Tammy, Huntington, IN................................. 23
Prepared statement of.................................... 25
Sarvadi, David G., Esq., Keller and Heckman, LLP, on behalf
of the U.S. Chamber of Commerce............................ 26
Prepared statement of.................................... 28
Spencer, Amy Beasley, senior chemical engineer, National Fire
Protection Association..................................... 32
Prepared statement of.................................... 34
Wright, Hon. William E., Board Member and Interim Executive,
U.S. Chemical Safety Board................................. 13
Prepared statement of.................................... 14
H.R. 5522, THE COMBUSTIBLE
DUST EXPLOSION AND FIRE
PREVENTION ACT OF 2008
----------
Wednesday, March 12, 2008
U.S. House of Representatives
Committee on Education and Labor
Washington, DC
----------
The committee met, pursuant to call, at 10:41 a.m., in Room
2175, Rayburn House Office Building, Hon. George Miller
[chairman of the committee] presiding.
Present: Representatives Miller, Payne, McCarthy,
Kuchinich, Wu, Sarbanes, McKeon, Platts, Keller, Wilson, Kline,
and Davis of Tennessee.
Staff present: Aaron Albright, Press Secretary; Tylease
Alli, Hearing Clerk; Jordan Barab, Senior Labor Policy Advisor;
Jody Calemine, Labor Policy Deputy Director; Lynn Dondis,
Policy Advisor for Subcommittee on Workforce Protections;
Michael Gaffin, Staff Assistant, Labor; Peter Galvin, Senior
Labor Policy Advisor; Brian Kennedy, General Counsel; Thomas
Kiley, Communications Director; Danielle Lee, Press/Outreach
Assistant; Alex Nock, Deputy Staff Director; Joe Novotny, Chief
Clerk; Rachel Racusen, Deputy Communications Director; Michele
Varnhagen, Labor Policy Director; Mark Zuckerman, Staff
Director; Robert Borden, Minority General Counsel; Cameron
Coursen, Minority Assistant Communications Director; Ed Gilroy,
Minority Director of Workforce Policy; Rob Gregg, Minority
Legislative Assistant; Richard Hoar, Minority Professional
Staff Member; Alexa Marrero, Minority Communications Director;
Jim Paretti, Minority Workforce Policy Counsel; Molly
McLaughlin Salmi, Minority Deputy Director of Workforce Policy;
Linda Stevens, Minority Chief Clerk/Assistant to the General
Counsel; and Loren Sweatt, Minority Professional Staff Member.
Chairman Miller [presiding]. The Committee on Education and
Labor will come to order for the purposes of conducting a
hearing on H.R. 5522, the Combustible Dust Explosion and Fire
Prevention Act of 2008.
We are going to go ahead and start the hearing at this
point. It appears that we will have a number of procedural and
parliamentary votes and motions on the floor, so we are going
to try to get through this in the best way we can this morning,
and make sure that we have time for all of our witnesses.
And our first two witnesses will be first, the Honorable
John Barrow, who represents Georgia's 12th Congressional
District that includes the Imperial Sugar refinery. John and I
are cosponsors of H.R. 5522, the subject of this hearing this
morning.
We welcome you to the committee, and we thank you for the
cooperation with the committee's staff and the help that your
district office gave us as we sent staff down to the site of
this accident.
When Mr. Kingston comes in, our colleague Jack Kingston is
a congressman who represents Georgia's 1st Congressional
District, which lies adjacent, as I understand it, to this area
where the Imperial Sugar refinery is. He will also join us at
the witness table. If he is delayed, we will call the panel,
and we will take Congressman Kingston when he arrives.
If I might, just with some opening remarks say that, just
over a month ago, an explosion ripped through the Imperial
Sugar plant outside of Savannah, Georgia, killing 12 workers
and critically injuring 11 others. The probable cause of this
explosion was combustible sugar dust.
The loss of lives in a workplace incident is always a
tragedy. But what is particularly troubling about the Imperial
Sugar explosion is that not only was it preventable, but the
U.S. Occupational Safety and Health Administration had been
specifically warned about the dust hazards, and provided a
guidance on how to address them.
The U.S. Chemical Safety Board warned OSHA over a year ago
that existing standards were inadequate to guard against the
risk of industrial dust, like sugar building up in dangerous
levels and exploding.
As we will hear today, in 2006, the Chemical Safety Board
issued a comprehensive study that identified hundreds of
combustible dust incidents that had killed over 100 workers
during the previous 25 years. The Chemical Safety Board report
found that no comprehensive federal rules exist to control the
risk of dust explosions in general industry, and recommended
that OSHA issue such rules.
Tragically, well more than a year after the Chemical Safety
Board's report was issued, OSHA has taken no action to issue
combustible dust rules.
In today's hearing, we will discuss legislation, H.R. 5522,
to require OSHA to issue a standard to protect workers against
combustible dust explosions. The new standard would be based on
the well-recognized, highly effective, voluntary standards
issued by the National Fire Protection Association.
Sadly, OSHA's failure to act on combustible dust is not the
first time the agency's inaction may have cost workers their
lives. For example, December 19, 2007, four workers died in a
massive explosion at the T2 Chemicals plant in Jacksonville,
Florida. The likely cause was a runaway chemical reaction.
The Chemical Safety Board had warned OSHA about this
chemical reaction hazard in a 2002 report that identified 108
fatalities in the previous 20 years, resulting from explosions
caused by chemical reactions. The Chemical Safety Board report
made recommendations for addressing reactive hazards, but as
with the dust hazard, OSHA chose not to follow up on the
recommendations.
Instead, OSHA chose to rely on the compliance assistance
and voluntary programs, such as industry alliances, Web pages,
fact sheets, speeches and booths at industry conferences. The
Chemical Safety Board judged these voluntary activities to be
unacceptable.
The bottom line is that, under the Bush administration,
OSHA has utterly failed to fulfill its congressional mandate.
The agency is leaving the Congress with no choice but to step
in.
Just look at the record of the last 12 months. On March 22,
2007, this committee held a hearing on a British Petroleum,
Texas City refinery explosion that killed 15 workers. In the
decade before our hearing, OSHA had not conducted a single
comprehensive inspection of any refinery in the United States.
Two days before the hearing, OSHA announced it would step up
inspections in refineries nationwide.
On April 24, 2007, the Subcommittee on Workforce
Protections held a hearing on OSHA's failure to address the
deaths and illnesses of workers in the food flavoring
industry--deaths caused by the horrific, irreversible lung
disease now called ``popcorn lung.''
Hours after the hearing, OSHA announced the so-called
``National Emphasis Program,'' targeting food and flavoring
manufacturers.
On September 26, 2007, the House approved a bill forcing
OSHA to develop rules to protect food flavoring workers. Just
hours before that vote, OSHA announced it was going to start
the rulemaking process.
The day after the Imperial Sugar explosion, Congresswoman
Lynn Woolsey and I sent a letter to Secretary Chao requesting
that standards on combustible dust on the morning of March 3rd.
After receiving no response from Secretary Chao, Congressman
Barrow and I introduced H.R. 5522.
Coincidentally, the same morning as we made the
announcement, Assistant Secretary Foulke was in Savannah
conducting a series of press interviews, and he announced that
OSHA would conduct more combustible dust inspections and send
letters to companies at risk.
But there is no reason for OSHA to get to work on issuing
new rules that would prevent this kind of disaster in the
future. The National Fire Protection Association and others
have known for a long time what causes these explosions, and
the National Fire Protection Association's voluntary standards
are feasible and affordable.
Unfortunately, we see this tragic pattern in workplace
injury or death followed by OSHA inaction everywhere we look.
We see it in the agency's failure to inspect refineries, in its
failure to issue new workplace safety rules, and its failure to
address ergonomic hazards and its failure to effectively
address the potential hazards of pandemic flu, and its failure
to meet even its own deadlines on standards for workers'
personal protection equipment and other life-threatening
hazards.
It is this highly questionable injury and illness
statistics and its promotion of voluntary programs over strong
law enforcement that troubles us.
Let me be clear. The Congress will continue to step in
until OSHA starts to consistently and aggressively fulfill its
responsibility of protecting the lives of American workers.
I would like to thank all of our witnesses in advance for
joining us today, and the committee appreciates your testimony.
Congressman Barrow, welcome to the committee. And we look
forward to your testimony.
[The statement of Chairman Miller follows:]
Prepared Statement of Hon. George Miller, Chairman, Committee on
Education and Labor
Just over a month ago, an explosion ripped through the Imperial
Sugar plant outside of Savannah, Georgia, killing 12 workers and
critically injuring 11 others. The probable cause of this explosion was
combustible sugar dust.
The loss of lives in workplace incidents is always a tragedy. But
what's particularly troubling about the Imperial Sugar explosion is
that, not only was it preventable, but the U.S. Occupational Safety and
Health Administration had been specifically warned about dust hazards
and provided with guidance on how to address them.
The U.S. Chemical Safety Board warned OSHA over a year ago that
existing standards were inadequate to guard against the risk of
industrial dusts, like sugar, building up to dangerous levels and
exploding.
As we will hear today, in 2006 the CSB issued a comprehensive study
that identified hundreds of combustible dust incidents that had killed
over 100 workers during the previous 25 years. The CSB report found
that no comprehensive federal rules exist to control the risk of dust
explosions in general industry and recommended that OSHA issue such
rules.
Tragically, well more than a year after the CSB report was issued,
OSHA has taken no action to issue combustible dust rules.
In today's hearing we will discuss legislation, H.R. 5522, to
require OSHA to issue a standard to protect workers against combustible
dust explosions. The new standard would be based on well-recognized,
highly effective voluntary standards issued by the National Fire
Protection Association.
Sadly, OSHA's failure to act on combustible dust is not the first
time that the agency's inaction may have cost workers their lives.
For example, on December 19, 2007, four workers died in a massive
explosion at the T2 Chemicals plant in Jacksonville, Florida, that was
likely caused by a runaway chemical reaction.
The CSB had warned OSHA about this chemical reaction hazard in a
2002 report that identified 108 fatalities in the previous 20 years
resulting from explosions caused by chemical reactions. The CSB report
made recommendations for addressing reactive hazards, but as with dust
hazards, OSHA chose not to follow the recommendations.
Instead, OSHA chose to rely on compliance assistance and voluntary
programs, such as industry ``alliances,'' web pages, fact sheets,
speeches and booths at industry conferences. The Chemical Safety Board
judged these voluntary activities to be ``unacceptable.''
The bottom line is that, under the Bush administration, OSHA has
utterly failed to fulfill its Congressional mandate. The agency is
leaving the Congress with no other choice but to step in.
Just look at the record of the past 12 months.
On March 22, 2007, this committee held a hearing on the BP Texas
City refinery explosion that killed 15 workers. In the decade before
our hearing, OSHA had not conducted a single comprehensive inspection
of any refinery in the United States. Two days before the hearing, OSHA
announced that it would step up inspections of refineries nationwide.
On April 24, 2007, the Subcommittee on Workforce Protections held a
hearing on OSHA's failure to address the deaths and illnesses of
workers in the food flavoring industry--deaths caused by a horrific,
irreversible lung disease often called ``popcorn lung.'' Hours before
the hearing, OSHA announced a so-called ``national emphasis program''
targeting food flavoring manufacturers.
On September 26, 2007, the House approved a bill forcing OSHA to
develop rules to protect food flavoring workers. Just hours before that
vote, OSHA announced it was going to start the rulemaking process.
The day after the Imperial Sugar explosion, Congresswoman Lynn
Woolsey and I sent a letter to Secretary Chao requesting a standard on
combustible dust. On the morning of March 3, after receiving no
response from Secretary Chao, Congressman John Barrow and I announced
that we would introduce H.R. 5522.
Coincidentally, the same morning that we made the announcement,
Assistant Secretary Foulke was in Savannah conducting a series of press
interviews. He announced that OSHA would conduct more combustible dust
inspections and send letters to companies at risk.
But there is no reason for OSHA to wait to get to work on issuing
new rules that would prevent this kind of disaster in the future. The
National Fire Protection Association and others have known for a long
time what causes these explosions, and the NFPA's voluntary standards
are feasible and affordable.
Unfortunately, we see this tragic pattern of workplace injury or
death followed by OSHA inaction everywhere we look.
We see it in the agency's failure to inspect refineries; in its
failure to issue new workplace safety rules; in its failure to address
ergonomic hazards; in its failure to effectively address the potential
hazards of pandemic flu; in its failure to meet even its own deadlines
on standards for workers' personal protective equipment and other life
threatening hazards; in its highly questionable injury and illness
statistics; and in its promotion of voluntary programs over strong
enforcement of the law.
Let me be clear: Congress will continue to step in until OSHA
starts consistently and aggressively fulfilling its responsibility of
protecting the lives of America's workers.
I'd like to thank all of our witnesses for joining us today. The
committee appreciates your testimony.
Thank you.
______
STATEMENT OF HON. JOHN BARROW, A REPRESENTATIVE IN CONGRESS
FROM THE STATE OF GEORGIA
Mr. Barrow. Thank you, Mr. Chairman. And thank you for
calling this hearing on H.R. 5522, the Combustible Dust
Explosion and Fire Prevention Act of 2008.
Just over a month ago, on February 7, the Imperial Sugar
refinery in Port Wentworth, just outside my home of Savannah,
was destroyed by a massive explosion. The explosion killed 12
people, maimed dozens more and shut down the economic engine
that drove an entire community.
I have visited with the families of the dead and the dying.
I have attended the meetings. I have attended the memorial
services.
And the question I hear over and over again is ``Why?'' Why
did this happen, and what can we do to prevent this from
happening again?
It turns out that the cause is something that most folks do
not even know about at all, do not know it is the least bit
dangerous at all, and that is: too much sugar dust all over the
place.
It also turns out, there are lots and lots of other
industrial dust that can cause massive explosions like this,
and have been causing massive explosions like this, for as long
as manufacturing plants have been generating dust on an
industrial scale.
What we have learned in my community since this disaster
hit us, is that the experts in the field have known about this
problem for decades. There have been voluntary standards that
effectively deal with this problem, but not enough people know
about the problem, much less the solutions. And even those who
know about the solutions are not required to adopt them.
We have also learned that the only standards that are
mandatory really are not designed with this problem in mind,
and they are not working.
And so, we have good standards that are not mandatory, and
inadequate standards that are mandatory.
So, here we are again. Once again the cry goes up to fix
this problem that has been around for so long. Only this time--
this time--we are not going to forget about what happened, and
we are not going to stop until we do what we can to cut down
this risk as much as possible.
Up until now, the argument has been between those who say
we should not go too fast in developing a national standard and
those who argue that we are going too slow. There are those who
argue that the costs of a comprehensive solution outweigh the
benefits.
We have even had some people argue that we should go slow
in adopting a national standard, because we run the risk of
encouraging employers to take our jobs to some other country
where they do not care as much about worker safety as we do.
I disagree. I say, if we can prevent just one of these
disasters from happening, if we can prevent just one family
from going through what the families at Imperial Sugar are
going through, it would be worth it.
Meanwhile, something has happened that sheds a whole new
light on the debate, and gives us a whole new reason for
adopting a national standard, and doing so as quickly as we
can. Because Georgia is not waiting for Congress to act. The
Georgia insurance commissioner, John Oxendine, has exercised
his authority under Georgia law to adopt the voluntary
standards promulgated by the people who know best how to
prevent these disasters from happening, the NFPA, and to make
those standards mandatory--but in Georgia.
Now, I commend him for his prompt action, but I want to
emphasize that this action gives us a new and compelling reason
for national action, because it is no longer an issue about
losing jobs to foreign markets where they do not care about
worker safety as much as we do. We now have to worry about
Americans losing jobs to other Americans, just because they
happen to live in states where they have not learned the
lessons of Imperial Sugar yet.
Unsafe competition is unfair competition, and the specter
of unsafe competition from abroad is bad enough. But the
reality of unsafe competition right here at home is even worse.
If we really want to do what we can to prevent this from
happening, we need to act. And we need to act now.
The bill that Chairman Miller and I have introduced
essentially does two major things.
First, it directs OSHA to issue a rule within 90 days,
which would, as a general matter, require manufacturers to
comply with the NFPA standards that right now are purely
voluntary. Basic safety would no longer be an employer option,
and it would no longer be a local option. It would be a common
obligation and a common right.
Second, our bill would give OSHA the opportunity to modify
or revise the rule before it becomes final, if they think they
can make it better. But it shifts to OSHA the burden of showing
how those standards can be made better, and we do not leave
workers at risk for as long as that can take.
I commend the members of this committee, especially
Chairman Miller and Congresswoman Woolsey, for trying to do
something about this for a long time. The time to act is now.
We owe it to the victims of last month's tragedy and to all the
other victims before that to do what we can to prevent this
sort of thing from ever happening again.
Thank you, Mr. Chairman.
[The statement of Mr. Barrow follows:]
Prepared Statement of Hon. John Barrow, a Representative in Congress
From the State of Georgia
Mr. Chairman, thank you for calling this hearing on H.R. 5522, the
``Combustible Dust Explosion and Fire Prevention Act of 2008.''
Just over a month ago, on February 7, the Imperial Sugar Refinery
in Port Wentworth, just outside of Savannah, was destroyed by a massive
explosion. The explosion killed 12 people, maimed dozens more, and shut
down the economic engine that drove an entire community.
I've visited with the families of the dead and dying, I've attended
the meetings, and I've attended the memorial services. And the question
I've heard over and over again is, Why? Why did this happen? And what
can we do to prevent this from happening again?
It turns out that the cause was something that most folks don't
know is the least bit dangerous: too much sugar dust all over the
place.
It also turns out that there are lots and lots of other industrial
dusts that can cause massive explosions like this, and have been
causing explosions like this, for as long as manufacturing plants have
been generating dust on an industrial scale.
What we've learned in my community since this disaster hit us is
that the experts in the field have known about this problem for
decades. There've been voluntary standards that effectively deal with
this problem, but not enough people know about the problem, much less
the solutions, and even those who do know about the solutions aren't
required to adopt them. We've also learned that the only standards that
ARE mandatory really aren't designed with this problem in mind, and
they aren't working. And so we have good standards that aren't
mandatory, and inadequate standards that are mandatory.
So, here we are again, and once again the cry goes up to fix this
problem that's been around for so long. Only this time, we're not going
to forget about what happened, and we're not going to stop until we do
what we can to cut down this risk as much possible.
Up until now the argument has been between those who say that we
shouldn't go too fast in developing a national standard, and those who
argue that we're going too slow. There are those who argue that the
costs of a comprehensive solution outweigh the benefits.
We've even had some argue that we should go slow in adopting a
national standard because we run the risk of encouraging employers to
take our jobs to some other country where they don't care as much about
worker safety as we do.
I disagree. I say if we can prevent just one of these disasters
from happening, if we can prevent just one family from going through
what the families of Imperial Sugar are going through, it'd be worth
it.
Meanwhile, something has happened which sheds a whole new light on
the debate, which gives us a whole a new reason for adopting a national
standard as soon as we can. Because Georgia isn't waiting for Congress
to act. The Georgia Insurance Commissioner, John Oxendine, has
exercised his authority under Georgia law to adopt the voluntary
standards promulgated by the people who know best how to prevent these
disasters form happening--the NFPA--and made them mandatory. In
Georgia.
I commend him for his prompt action, but I want to emphasize that
his action gives a new and compelling reason for national action.
Because it's no longer an issue about losing American jobs to foreign
markets where they don't care about worker safety as much as we do. We
now have to worry about Americans losing jobs to other Americans, just
because they happen to live in states were they haven't learned the
lessons of Imperial Sugar yet. Unsafe competition is unfair
competition, and the specter of unsafe competition from abroad is bad
enough. But the reality of unsafe competition right here at home is
even worse.
If we really want to do what we can to prevent this from happening,
we need to act. And we need to act now.
The bill that Chairman Miller and I have introduced essentially
does two major things:
First, it directs OSHA to issue a rule within 90 days which would,
as a general matter, require manufacturers to comply with the NFPA
standards that right now are purely voluntary. Basic safety would no
longer be an employer option, nor would it be a local option. It would
be a common obligation and a common right.
Second, our bill would give OSHA the opportunity to modify or
revise the rule before it becomes final, IF they think they can make it
better. But it shifts to OSHA the burden of showing how those standards
can be made better. And we don't leave workers at risk for as long as
that can take.
I commend members of this Committee, especially Chairman Miller and
Congresswoman Woolsey, for trying to do something about this for a long
time. The time to act is now. We owe it to the victims of last month's
tragedy--and to all the other victims before that--to do what we can to
prevent this sort of thing from ever happening again.
______
Chairman Miller. Well, thank you. And thank you very much
for taking your time and coming to testify, but also the time
that you have spent with the victims, the workers and the
managers of this facility.
You mentioned one of the common arguments, and that is that
somehow, if we impose these regulations, that that will drive
jobs overseas. That is commonly used by people who do not want
the regulation. But I just wondered what you see, what kind of
reaction you are getting from your constituents.
Mr. Barrow. Again, Mr. Chairman, the idea of unsafe
competition being something we have to compete with on a
national level is bad enough. But while other states are
moving--states are moving forward on a state-by-state basis to
try and address this problem. The reality is we have got unsafe
competition right here at home.
And I think the specter of unsafe competition abroad is
exaggerated. We should not tolerate that either. We should
insist, as a condition of fair trade agreements and the like,
that folks incorporate the cost of doing things safely in our
competing markets, just like we incorporate the cost of doing
things safely as a cost of doing business in our country.
As I have said, unsafe competition is unfair competition.
That is true at the national level, and it is also going to be
true--if we do not act at the national level, it is going to be
true right here at home.
Chairman Miller. When you--you know, one of the tragic
circumstances--when you discuss this with your constituency, do
you get any sense that there was an awareness or a plan to deal
with this risk, or there was knowledge of people of what this
risk was inside that facility or in the community?
Mr. Barrow. The sense that I get, Mr. Chairman, is the
folks who work in the plants are generally aware that there is
some risk. But what is all too obvious is that the standards
that were in force and the standards that were in effect
nationwide are not adequate to prevent this sort of thing from
happening.
It is one thing to know about it, and it is another to
realize just how great the likelihood of an incident is.
And the greater the gravity of the harm, the less
likelihood you have to have in order to have a need to act. And
that is what I think we are dealing with here.
Chairman Miller. Thank you.
Mr. Barrow. I would like to welcome my colleague, Jack
Kingston, here.
Chairman Miller. Mr. Kingston, we welcome you. We are
trying to fit this testimony in and out of the votes. And I was
told there was not going to be a second vote. But I see,
obviously, there is a second vote. But thank you for coming
over, and we have some minutes here. I don't know if you have
made this vote.
STATEMENT OF HON. JACK KINGSTON, A REPRESENTATIVE IN CONGRESS
FROM THE STATE OF GEORGIA
Mr. Kingston. And I am sorry that I was not here for my
colleague's testimony.
I just want to say that, thank you very much for inviting
me. And I appreciate this committee's interest in dust
standards. And I think it is good to have this hearing.
And I think it is important to act quickly, and also act
effectively, because the goal that we all share is to prevent
accidents like this in the future. And I know we are all united
in comprehensive worker safety.
I am a little concerned about the bill, that in its present
form it could have some unintended consequences. Primarily, my
concern is that it may be a one-size-fits-all approach.
We need to make sure that we have regulations tailored to
different types of dust and different types of industries. Just
to name a few, there is coal, there is metal, there are
organics, there is sugar, there is plastic, wood and
pharmaceutical dust, each with its own chemical properties,
each with its own flashpoints. And I think the bill should be
careful to address those differences.
Another thing, the bill does not call for more inspections
from OSHA. Now, that might be something that we need to look at
from an appropriations standpoint. But there are about 80,000
plants in the country that have potential dust-related hazards.
But since this legislation does not call for additional
inspections, housekeeping and violations of the General Duty
Clause of the 1970 Occupational Safety and Health Act could
continue to be a problem.
And H.R. 5522 recommends a rule based on having no less
protection than the National Fire Protection Association
standards. The NFPA 654 and NFPA 484 feature numerous
provisions which are comparable to existing OSHA standards,
such as housekeeping controls for accumulation of combustible
dust and electrical ignition sources.
Other parts of NFPA 654 and 484 would actually expand the
scope of OSHA's authority into areas such as building design.
And that may be the intent of the committee, but I think we
need to be aware of that.
In addition, NFPA 61 is not mentioned in the bill, but that
is the portion that covers ag products such as sugar. And
certainly, we should look at that in terms of this legislation.
Also, H.R. 5522 requires that OSHA violate its statutory
mandate for a public comment period. I see why Congress wants
to move quickly. But doing so could eliminate helpful comments
from thousands of industry stakeholders, employees and unions,
who could contribute helpful suggestions and concerns.
Without the appropriate timeframe for evaluation and their
input, it will be difficult for OSHA to determine any
unintended consequences of this regulation.
And finally, we do not definitely know what caused this
tragedy. Numerous inspectors are trying to answer that
question, even as we meet today. These include OSHA, the
Chemical Safety Board, the Bureau of Alcohol, Tobacco and
Firearms, local fire inspectors, and insurance adjustors.
Among these questions are, what ignited the dust? Why,
after 90 years of operation, did an explosion of this size
occur? Was there a change in dust containment? Was there a
lapse in housekeeping? Did the ventilation change? Was there a
process in change?
Certainly, answers to these questions are going to be
relevant to effective legislation. While fast action is
desired, appropriate action and regulation should not be
discounted.
I hope we can meet both these objectives, and I look
forward to working with you and Mr. Barrow. And I thank Mr.
Barrow for introducing this.
And with that, Mr. Chairman, that is my testimony.
[The statement of Mr. Kingston follows:]
Prepared Statement of Hon. Jack Kingston, a Representative in Congress
From the State of Georgia
Good morning Chairman Miller, Ranking Member McKeon, and
colleagues, and thank you for inviting me. Today's hearing is about
dust standards, and I am sure we will talk in great detail about that.
I am here today to encourage a proper balance between acting quickly
and acting effectively. We should work to guarantee a standard that
prevents future accidents like this. I know we all share the goal of
comprehensive worker safety.
I am concerned that this well-intended bill, in its present form,
may have some unintended consequences. Primarily, it is a ``one-size-
fits-all'' approach. As such, it fails to tailor the regulation for
different types of dusts and the many different industries which create
this dust. Just to name a few, dust is produced by coal, metal,
organics, sugar, plastics, wood, and pharmaceuticals. Each has its own
chemical properties and flashpoints. I believe the bill should be
amended to address these differences.
This legislation does not call for more inspections from the
Occupational Safety and Health Administration (OSHA). There are around
80,000 plants that have potential dust-related hazards. Thus, since
this legislation doesn't call for additional inspections, housekeeping
and violations of the ``general duty'' clause of the 1970 OSH Act could
continue to be a problem.
H.R. 5522 recommends a rule based on having ``no less protection''
than the National Fire Protection Association's (NFPA) standards. The
NFPA 654 and NFPA 484 feature numerous provisions which are comparable
to existing OSHA standards, such as housekeeping controls for
accumulation of combustible dust and electrical ignition sources. Other
parts of NFPA 654 and 484 would expand the scope of OSHA's authority
into areas such as building design. Is this the intent of the
Committee? In addition, NFPA 61 covers agricultural products including
sugar but is not listed in the legislation. Certainly, this should be
remedied.
H.R. 5522 requires OSHA to violate its statutory mandate for a
public comment period. I see why Congress may want to move quickly, but
doing so eliminates helpful comments from thousands of industry
stakeholders, employees, and unions who could contribute their helpful
suggestions and concerns. Without the appropriate time frame for
evaluation and their input, it will be difficult for OSHA to determine
any unintended consequences of this regulation.
Finally, we don't know definitively what caused this tragedy.
Numerous inspectors are trying to answer that question even as we meet
today. These include OSHA, the Chemical Safety Board, the Bureau of
Alcohol, Tobacco and Firearms, local fire inspectors and insurance
adjusters. Among these questions are, what ignited the dust? Why, after
90 years in operation, did an explosion of this size occur? Was there a
change in dust containment? Was there a lapse in dust housekeeping? Did
the ventilation change? Was there a processing change? Certainly, the
answers to these questions are relevant to effective legislation.
While fast action is desired, appropriate action and regulation
should not be discounted. I hope we can meet both objectives and look
forward to working with you as we progress.
______
Chairman Miller. Thank you very much for your testimony,
and we have a couple of minutes remaining here.
I think when--just your suggestion, Congressman Kingston,
that, you know, there a lot of different types of industries
where dust is created in the process.
I think one of the encouraging things is the Chemical
Safety Board looked across these industries. Many of them are
very different in both product and processing. But what they
saw was, you did not have a consistent system with integrity of
removing the fuel from this. Ignition points come in all
different fashions, but it is the presence of the fuel.
And when they looked at this, they did not see a framework
to make sure that that fuel was minimized during this process.
There were a lot of different procedures that people could
follow, and a lot of different places they could go to get
information, but nothing that really required a comprehensive
framework for the removal of that dust.
And that is the challenge. And that is what this hearing is
about, is that conflict.
Congressman Barrow?
Mr. Barrow. Thank you, Mr. Chairman.
I just want to add some emphasis to some of the things that
Jack said.
I agree with the idea that we have to have appropriate
input from the appropriate stakeholders. But I would point out
that the NFPA standards have evolved as the result of give-and-
take and input from every conceivable sector of the industrial
economy in this country for over 60 years now.
What is needed is not input, because we have got that. What
is needed is the will to act.
When you have got an agency that does not know its job or
does not care about its job, or it has got all kinds of reasons
for not doing its job, it is a little bit like going bird
hunting and having to tote the dog.
What we need is the will to act. And if the agency will not
do it, we need to get going ourselves, and put the standards on
the books that will protect people for as long as it takes them
to do their job.
Chairman Miller. Well, you know, when you and I talked
about possible legislation or how we would respond, there was
concern that we would start drafting regulations here in this
committee, and then impose them.
And of course, what we found was, here is a series of
regulations that are in force and effect in many, many areas in
the state--in the country--and they have evolved. They had--it
is sort of a continuous process of inputs about how to evolve
these regulations.
So, you know, if that is----
Mr. Barrow. It evolved in the private sector----
Chairman Miller [continuing]. That is a starting point for
OSHA, not the final point.
Mr. Barrow. They have evolved in the private sector, and
they are working in the private sector, where they are being
implemented.
Chairman Miller. Anything else?
Mr. Barrow. Thank you, Mr. Chairman.
Chairman Miller. We are going to go--you have questions?
Mr. McKeon. No questions.
Chairman Miller. No questions, okay.
We are going to recess, I guess, for a moment here. This is
a very well orchestrated process we have going here between the
floor and the committee.
Hopefully, we will get done with this series of votes as
soon as possible. We will return, and we will begin with our
next panel.
Again, Congressman Barrow, Congressman Kingston, thank you
for your time and for your testimony.
The committee will return as soon as possible.
[Recess.]
Chairman Miller. We will reconvene the committee. And if we
could have our next panel come forward.
Thank you in advance for your testimony. Thank you for your
participation in today's hearing. I think it is a critically
important hearing. And thank you for your patience in putting
up with the congressional floor schedule, we will say, at the
moment.
It is a little bit unpredictable, but there are two
stories. Either we are going to have about an hour, or we are
going to be right back on the floor very quickly. So, we will
see.
Our next panel is made up of Mr. William E. Wright. William
Wright was appointed to the U.S. Chemical Safety and Hazards
Investigation Board in September 2006. Immediately prior to his
appointment to the board, Mr. Wright served 5 years as chairman
of the Department of Defense Explosives Safety Board.
Mr. Wright served in the Navy Special Operations Explosive
Ordnance Disposal Community, and Mr. Wright earned his
bachelor's degree and a master's of business administration
from the University of Puget Sound, and a master's of arts
degree in National Security and Strategic Studies from the U.S.
Naval War College.
Tammy Miser, who lost her brother, Shawn Boone, in 2003, in
an explosion at the Hayes Lemmerz cast aluminum automotive
wheel manufacturing plant in Huntington, Indiana. Ms. Miser is
the founder of the United Support and Memorial For Workplace
Fatalities, an organization that provides support and memorials
and awareness to families of workers killed on the job. She was
the winner of the 2007 Tony Mazzocchi Award from the
Occupational Section of the American Public Health Association.
Edwin Foulke was appointed assistant secretary of labor for
occupational safety and health in September 2005. Prior to his
nomination, Mr. Foulke was a partner in the law firm of Jackson
and Lewis of Greenville, South Carolina, and Washington, D.C.
Mr. David Sarvadi is an attorney with Keller and Heckman in
Washington, D.C., and represents clients in the areas of
occupational health, safety, toxic substances and management of
pesticide regulation, employment law and product safety. He is
a certified industrial hygienist.
Amy Spencer is a senior chemical engineer at the National
Fire Protection Association in Quincy, Massachusetts. She has
been with the NFPA 12 years. And prior to joining this
organization, she worked at the National Institute of
Occupational Health and Safety.
Welcome to the committee. We look forward to your
testimony. When you begin, a green light will go on, and when
you have 1 minute left of the 5 minutes, an orange light will
go on. We would like you to try to wrap up your testimony, but
we certainly want you to complete your thoughts and the purpose
of your testimony. And then it will be a red light.
Mr. Wright, we are going to begin with you.
STATEMENT OF BILL WRIGHT, INTERIM CHAIR, U.S. CHEMICAL SAFETY
AND HAZARD INVESTIGATION BOARD
Mr. Wright. Thank you, Chairman Miller, Ranking Member
McKeon and distinguished members of the committee.
I am William Wright, testifying today on behalf of the U.S.
Chemical Safety Board, including members William Wark and Gary
Visscher.
I commend you for convening today's hearing and for your
leadership on this issue.
Mr. Chairman, the disastrous accident at Imperial Sugar is
but the latest of a long series of tragic dust explosions going
back over decades. Dust explosions kill and injure American
workers, destroy jobs and businesses and shatter communities.
No one knows that better than Tammy Miser. After losing her
brother Shawn to a dust explosion, she has courageously
dedicated her life to drawing attention to this deadly hazard.
Mr. Chairman, these human tragedies are preventable.
Without accumulated dust, the most catastrophic type of dust
explosion will not occur. Good engineering and safety practices
to prevent dust explosions have existed for decades in the
standards of the National Fire Protection Association, NFPA.
In 2003, the CSB investigated three catastrophic dust
explosions in North Carolina, Kentucky and Indiana that caused
a total of 14 deaths and dozens of injuries. We found that all
three facilities had longstanding dust hazards. State OSHA
officers had inspected all three facilities prior to the
accidents, but the dust hazards were never recognized or cited.
Furthermore, the CSB determined that all three explosions
could likely have been prevented, if the facilities had
implemented NFPA-recommended practices.
Like these others, our preliminary findings indicate the
explosion at Imperial Sugar appears to have been a multi-stage
event. An unknown primary event most likely dislodged sugar
dust that had accumulated over a long period on surfaces
throughout the facility.
This dislodged dust fueled devastating secondary explosions
that killed and burned workers. This facility was decades old
and had many horizontal surfaces where dust could collect, such
as overhead floor joists, rafters and duct work. Witnesses have
described substantial snow-like accumulations of sugar dust on
these surfaces.
Most employees and contractors have received little
training on the explosion hazard from accumulated dust. And no
witnesses have indicated that the facility had a program to
fully implement NFPA standards for combustible dust.
Our investigation to-date clearly links the accident at
Imperial to many earlier dust explosions investigated by the
CSB and others.
In November 2006, the CSB completed a comprehensive study
of the problem of combustible dust. We determined this problem
was nationwide and urgent. The problem shows no sign of
diminishing. And in fact, the Imperial accident last month is
the deadliest industrial dust explosion in the United States
since 1980.
Our dust study identified 281 dust fires and explosions
that occurred at U.S. businesses between 1980 and 2005, causing
119 deaths and 718 injuries. And since 2005, about 70
additional dust explosions have been reported.
The CSB study called on OSHA to develop a comprehensive
regulatory standard for dust explosions in general industry, to
improve training of OSHA inspectors and to require better
communication of dust hazards for workers using material safety
data sheets.
And as an interim measure, we also recommended that OSHA
establish a national emphasis program to better enforce
existing standards. And we commend OSHA for having undertaken
such a program in October 2007.
OSHA's existing requirements, including the general duty
clause and the housekeeping standard, apply to combustible dust
hazards. However, a comprehensive dust standard would be more
effective, by focusing both employers' and inspectors'
attention on this hazard and the steps that should be taken to
prevent dust explosions and fires.
In 1987, OSHA issued a standard to prevent grain dust
explosions. This standard has cut deaths and injuries from
grain dust explosions by 60 percent. The grain dust standard
requires a formal written housekeeping program with cleaning
schedules, identification of priority cleaning areas and the
immediate safe removal of any dust accumulations over an eighth
of an inch.
In addition to housekeeping, industrial facilities need to
consider proper equipment design, maintenance, building design,
explosion venting and control of ignition sources.
Finally, workers must be made aware of the hazards of
combustible dust and trained on the safe methods for working
within dust environments.
The NFPA codes contain recommendations on all these topics.
And like all other voluntary consensus standards, the NFPA dust
codes will need to be carefully reviewed and adapted to create
regulations that are reasonable and appropriate for a wide
variety of affected industries and workplaces.
Mr. Chairman, we urge the prompt development of a
comprehensive dust standard as we recommended in our 2006 dust
study. This will not only save lives, protect U.S. jobs and
businesses, but also protect our communities.
Thank you for the opportunity to testify today, sir.
[The statement of Mr. Wright follows:]
Prepared Statement of Hon. William E. Wright, Board Member and Interim
Executive, U.S. Chemical Safety Board
Thank you, Chairman Miller, Ranking Member McKeon, and
distinguished members of the Committee. I am William E. Wright, board
member and interim executive of the U.S. Chemical Safety Board.
The CSB is an independent federal agency that investigates and
determines the causes of major chemical accidents, conducts studies,
and develops safety recommendations and outreach materials to prevent
future accidents.
I present my testimony today on behalf of the full board, including
Members William Wark and Gary Visscher.
I commend you for convening today's hearing and for your leadership
on this issue. On behalf of everyone at the agency, I extend my deepest
condolences to the families of the victims in Port Wentworth and our
prayers for the recovery of the injured.
Mr. Chairman, the disastrous accident at Imperial Sugar is but the
latest in a long series of tragic dust explosions at U.S. industrial
facilities stretching back over decades.
Combustible dust can pose a serious fire and explosion hazard at
thousands of U.S. industrial facilities. Dust explosions kill and
injure American workers, destroy jobs and productive enterprises, and
shatter communities.
These accidents are particularly sad because they leave behind a
trail of broken lives. Often, even the most advanced medical care
cannot cure the severe burn injuries caused by combustible dust
explosions. Those who survive are often left badly disabled and
disfigured, facing a lifetime of struggle and pain.
No one knows that better than Tammy Miser, who is sitting at the
witness table today. After losing her 33-year-old brother Shawn to a
dust explosion in Indiana four years ago, Tammy has courageously
dedicated her life to drawing attention to this deadly hazard.
Mr. Chairman, these tragedies are preventable. The key to avoiding
the most devastating accidents is to eliminate the basic fuel, the
combustible dust that accumulates over time inside plants and awaits
some event to trigger a massive explosion.
Without accumulated fuel, the most catastrophic type of dust
explosion can not and will not occur.
Our investigation to determine the causes of the tragedy at
Imperial Sugar is ongoing. The CSB field team remains in Georgia,
overseeing what we expect will be several months of painstaking work to
dismantle and examine the heavily damaged sections of the refinery.
However, the investigation team has made some preliminary findings.
Like many catastrophic dust explosions, this was a multi-stage event.
There was a primary event, the nature of which remains unknown. The
primary event most likely dislodged sugar dust that had accumulated
over a long period on surfaces around the facility. This dislodged dust
was the fuel for additional explosions.
Devastating explosions propagated through a large section of the
refinery, destroying the sugar packaging plant and causing catastrophic
injuries to multiple employees and contractors.
Eight people died in the refinery, and four others died later in
the hospital of severe burn injuries. Approximately 35 others were
injured. Eight remain critically ill in an Augusta burn center, facing
a difficult and uncertain future.
This facility was decades old and had many horizontal surfaces
where dust could collect. These included overhead floor joists,
rafters, ductwork, piping, and equipment. Witnesses have described
substantial, snow-like accumulations of sugar dust on these surfaces.
Most employees and contractors had received little training on the
explosion hazard from the accumulated dust.
No witnesses have indicated that the facility had a program to
fully implement NFPA standards for combustible dust.
While there is much still to be determined about the tragedy at
Imperial Sugar, the findings to date clearly link this accident to many
earlier dust explosions investigated by the CSB and others.
In November 2006, the CSB completed a comprehensive study of the
problem of combustible dust. We began this study out of necessity,
after having to investigate three fatal dust explosions in 2003 alone
that caused 14 deaths.
The CSB study identified 281 dust fires and explosions that
occurred at U.S. businesses between 1980 and 2005--not including
primary grain handling or underground coal dust explosions.
Dust explosions afflict many industries, including food products,
plastics, automotive parts, drugs, chemicals, and electric utilities. A
wide range of combustible materials can explode in finely powdered
form, including coal, wood, flour, sugar, and many chemicals, plastics,
and metals.
These accidents caused 119 deaths and more than 718 injuries. In
the two years since we compiled the data for the study, media reports
indicate that approximately 67 additional dust fires and explosions
have occurred. A number of these reportedly caused moderate to severe
facility damage. Our information on these incidents does not tell us
how many of these were primary dust explosions, such as may occur in a
dust collection system, and secondary explosions which typically
involve accumulated dust and are often the more destructive dust
explosions.
Our investigation found that good engineering and safety practices
to prevent dust explosions have existed for decades. Current good
practices are contained in National Fire Protection Association (NFPA)
standards, such as NFPA 654 and NFPA 484. These standards are cited in
the Miller-Barrow legislation now before the committee.
Some state and local governments have adopted NFPA standards as
part of their fire codes, but many have not. Our study also found that
enforcement of these codes at industrial facilities is, at best,
uneven.
Code enforcement agencies heavily emphasize the inspection of high
occupancy establishments such as hotels, schools, and nursing homes--
not industrial facilities. These agencies often lack the training or
staffing to inspect industrial sites or enforce technical standards for
combustible dust. Because hundreds of different state and local
jurisdictions are involved in code enforcement across the country,
there is no straightforward way to improve this system.
In the 1970s and 1980s, the U.S. experienced a series of grain dust
explosions that caused a number of deaths. OSHA responded in 1987 by
issuing a comprehensive grain dust standard. This standard requires
preventive maintenance, worker training, safe operating procedures,
emergency planning, and formal dust cleaning programs.
According to OSHA's own review in 2003, this standard has cut
deaths and injuries from grain dust explosions and fires by 60%. And as
noted in the CSB study, the grain industry itself now credits the
standard with helping to make the design of grain handling facilities
safer.
The CSB study on combustible dust made five specific safety
recommendations to OSHA. We called for a comprehensive regulatory
standard for dust explosions in general industry, improved training of
OSHA inspectors to recognize dust hazards, better communication of dust
hazards to workers using Material Safety Data Sheets (MSDSs), and asked
OSHA to alert the United Nations Economic Commission for Europe of the
need to amend the Globally Harmonized System to address combustible
dust hazards.
On an interim basis, while a new standard was being developed, we
recommended that OSHA establish a national emphasis program to better
enforce existing standards. The Board saw this as only an interim
measure because existing standards do not adequately regulate dust
hazards.
In response, OSHA indicated that it would evaluate all of the
recommendations, and that it was preparing to launch a National
Emphasis Program on combustible dust. OSHA publicly announced its
emphasis program for dust in October 2007.
We commend OSHA for this positive step.
OSHA's existing requirements--including the general duty clause and
the housekeeping standard--apply to combustible dust hazards. However,
a specific and comprehensive standard addressing combustible dust would
focus both employers' and inspectors' attention on this hazard and the
steps that should be taken to prevent dust explosions and fires. And
this standard would be more effective in reducing combustible dust
explosions and hazards.
OSHA's general housekeeping standard (29 CFR 1910.22) requires that
``all places of employment be kept clean and orderly and in a sanitary
condition'' but does not mention combustible dust or impose any
specific enforceable limitations, engineering controls, procedures, or
training requirements.
By contrast, the housekeeping requirements of the OSHA grain dust
standard (29 CFR 1910.272) are much more prescriptive. The requirements
include a formal written housekeeping program with cleaning schedules,
identification of priority housekeeping areas where combustible dusts
are most likely to be present, a requirement to immediately remove any
dust accumulations of more than an eighth of an inch, and a prohibition
against using compressed air for cleaning.
However, these requirements only apply in grain handling
facilities, not in other industrial establishments.
NFPA 654 likewise contains much more detailed housekeeping
provisions than does the OSHA general housekeeping standard.
Absent a comprehensive OSHA standard for combustible dust, no one
can be confident that dust hazards will be cited and corrected prior to
the occurrence of additional accidents.
In 2003, the CSB investigated three catastrophic dust explosions in
North Carolina, Kentucky, and Indiana, that caused a total of 14 deaths
and dozens of injuries. All three facilities had longstanding dust
hazards.
In all three cases, we found that state OSHA officers had inspected
the facilities prior to the accidents, but the dust hazards were never
recognized or cited.
Furthermore, the CSB determined that all three explosions could
likely have been prevented if the facilities had complied with the good
safety and engineering practices contained in NFPA 484 and NFPA 654.
In two of the fatal explosions we investigated in 2003, MSDSs
failed to warn workers about the potentially explosive properties of
powdered combustible materials. In our 2006 dust study, we examined 141
different MSDSs for known combustible powders and found that less than
half contained any form of warning that the material could pose a dust
explosion hazard. Only a handful referenced the relevant NFPA
standards.
The OSHA standard for hazard communication does not specifically
include combustibility of dust among the hazards that require an MSDS,
and OSHA provides no guidance for communicating dust explosion hazards.
Therefore, we also made a recommendation to OSHA to amend the
hazard communication standard to clearly require MSDSs for materials
that are or could form combustible dust during processing or handling.
There are complexities in developing a comprehensive dust standard,
but the NFPA standards form a sound and widely respected technical
basis for developing a nationwide rule. They include key requirements
for hazard assessment, engineering controls, housekeeping, building
design, explosion protection, operating procedures, worker training,
and the safe design and maintenance of dust collection systems. In
addition, the use of industry consensus standards as the basis for
regulation is consistent with existing federal policies.
Regular cleaning and removal of accumulated dust, using safe and
proper methods--commonly referred to as housekeeping--is important for
reducing the likelihood of dust explosions.
In fact, prior to the explosion Imperial Sugar had a regular
housekeeping and cleanliness program to maintain food quality and
safety and to protect workers from slips and other injuries.
Facilities need to be examining a variety of other steps, such as
designing and maintaining their process and dust control equipment to
reduce dust releases into the air. Safe design features should be
incorporated into buildings where combustible dust is present, such as
minimizing horizontal surfaces, sealing off partitions to prevent the
spread of dust, and including features to mitigate explosions.
Ignition sources need to be carefully controlled, including not
just electrical sources of ignition (which are currently regulated) but
also thermal sources of ignition such as ovens, frictionally heated
surfaces, and welding and cutting operations.
Equipment should be designed to safely control and vent primary
dust explosions--those that can occur inside dust collectors, grinders,
and mixers--in order to avert catastrophic secondary dust explosions.
Finally, workers must be made aware of the hazards of combustible
dust and trained on safe methods for working in dust environments and
for handling and removing dust accumulations.
The NFPA combustible dust codes contain good practice
recommendations on all these topics. However, these critical safeguards
cannot be required at facilities simply by using existing authorities
such as the OSHA general duty clause or the housekeeping standard.
Like other voluntary consensus standards, the NFPA dust codes will
need to be carefully reviewed and adapted to create enforceable
regulations. That is the purpose of the rulemaking process, in which
business, labor, and fire prevention organizations can all participate.
It is important that there be sufficient opportunity to assure that a
standard is reasonable and appropriate for the wide variety of
industries and workplaces in which potential combustible dust hazards
may be found.
The time to begin this important work is right away. In the past
five years, from 2003 to 2008, we have been notified of ten fatal dust
explosions that have caused approximately 32 deaths and 138 injuries.
The problem shows no sign of diminishing, and in fact the Imperial
accident last month is the deadliest industrial dust explosion in the
U.S. since 1980.
The State of Georgia has recognized the urgency of the situation
and late last week announced emergency regulations intended to reduce
dust explosion hazards. I commend State Fire and Insurance Commissioner
John Oxendine and State Fire Marshal Alan Shuman for taking prompt
action.
I urge similarly prompt action at the federal level. We need to
develop sound federal regulations that businesses can implement and
that will protect American workers.
Put simply, a comprehensive dust standard will save lives.
It will also protect U.S. jobs, businesses, and communities that
will otherwise be harmed or lost from deadly dust explosions.
Thank you for the opportunity to testify to today.
______
Chairman Miller. Thank you.
Mr. Foulke?
STATEMENT OF EDWIN FOULKE, ASSISTANT SECRETARY OF LABOR,
OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION
Mr. Foulke. Thank you, Mr. Chairman. And I would like to
thank you for the opportunity to appear here today to discuss
the proposed legislation H.R. 5522, the Combustible Dust
Explosion and Fire Protection Act of 2008.
I would like to begin my testimony by expressing my deepest
personal condolences to the victims and to the families of
those who were killed or injured in the explosion at Imperial
Sugar refinery in Port Wentworth, Georgia.
One death in the workplace is one too many. Every employee
in OSHA takes the agency's mission very seriously, and they
also join me in expressing their condolences to those affected
by this tragedy.
When the explosion occurred at Imperial Sugar on February
7th, OSHA responded immediately. A team of highly trained
experts from OSHA, along with an outside expert on combustible
dust, were on the scene to help ensure the safety and help of
first responders, and prevent additional injuries or deaths
from occurring.
For example, OSHA compliance personnel conducted air
sampling and declared an administrative building off limits
when OSHA inspectors found potential flammable vapors caused by
sugar fermentation.
While early indications suggest that the Imperial Sugar
refinery explosion occurred due to an excessive accumulation of
combustible sugar dust, our investigation will determine the
cause of the explosion and whether any OSHA standards were
violated. If this is the case, I assure you that OSHA will act
swiftly to issue citations and impose appropriate penalties.
Combustible dust is a recognized workplace hazard, and OSHA
uses a multi-pronged strategy to address this hazard. OSHA
already has tough and effective standards and policies on the
books that address combustible dust hazards, including the
standards--and general requirements for housekeeping,
electrical safety, ventilation, hazardous location, hazard
communication and emergency action plans.
A list of all 17 OSHA standards that relates to combustible
dust is attached to my written statement as Attachment A. If
workplaces are in compliance with these standards, accidents
from combustible dust can be prevented.
OSHA uses enforcement to ensure these standards are being
followed. Last year, OSHA implemented a comprehensive national
emphasis program for combustible dust. This proactive measure
was based on a regional special emphasis program on combustible
dust implemented in 2004. The national emphasis program focuses
on workplaces where combustible dust hazards are likely to be
found and discusses activities that can create combustible
dust.
Along these lines, and in an effort to provide an even
greater emphasis on high hazard facilities, OSHA recently
expanded the combustible dust national emphasis program to
focus on facilities with a high probability of catastrophic
event. Overall, OSHA will conduct approximately 300 combustible
dust inspections this year through the national emphasis
program.
In addition to combustible dust standards and enforcement,
OSHA has undertaken aggressive outreach to the regulated
community. We are working to promote their understanding of
potential catastrophic impact of combustible dust and inform
them of the means to reduce this hazard.
For example, in 2005, OSHA issued a safety and health
information bulletin, or SHIB, entitled ``Combustible Dust in
Industry,'' preventing and mitigating the effects of fire and
explosion. This SHIB was made widely available, and was
recently mailed to 30,000 workplaces that are prone to
combustible dust hazards.
We also sent out an alert letter to state administrators of
occupational safety and health programs run by the 23 states.
OSHA has hosted educational outreach sessions on
combustible dust, and OSHA has also disseminated information
and education compliance assistance materials related to
combustible dust, including interactive Web-based training
tools on various occupational safety and health topics.
Further, we recently posted a combustible dust Web page and
a combustible dust fact sheet to make it easier to find these
guidance materials and other combustible dust resources. OSHA
is developing new guidance materials, including a hazard
communication alert.
We recognize the need for specialized training in
combustible dust. We have provided advanced training for over
350 of our compliance safety officers. This week we conducted a
2-hour refresher course on combustible dust for 700 of our
enforcement personnel. We also offer combustible dust as a
topic in the Susan Harwood training grant program.
OSHA has taken strong measures on combustible dust.
Nevertheless, the agency is carefully considering all options
to deal with combustible dust, including rulemaking. OSHA
continually evaluates its combustible dust efforts, and the
information gathered through its new national emphasis program
will be critical to this effort.
The existence of a standard does not ensure that hazards
will be eliminated. Many tragic accidents could have been
avoided or minimized, if the employers had complied with
existing OSHA standards.
We do not yet know whether noncompliance was a factor in
the tragedy at Imperial Sugar, and it would be unfair to
publicly assert that today. But ultimately, employers are
responsible for the safety and health of their employees, and
OSHA stands ready to work with all interested parties who are
committed to workplace safety.
Thank you, Mr. Chairman, for inviting me here today, and I
will be happy to answer any questions you may have.
[The statement of Mr. Foulke follows:]
Prepared Statement of Hon. Edwin G. Foulke, Jr., Assistant Secretary,
Occupational Safety and Health Administration
Mr. Chairman, Members of the Committee: Thank you for the
opportunity to appear today to discuss the proposed legislation, H.R.
5522, the ``Combustible Dust Explosion and Fire Prevention Act of
2008.''
I would like to express my deepest personal condolences to the
victims and to the families of those who have been killed or injured in
the explosion at the Imperial Sugar refinery in Port Wentworth,
Georgia, in early February. Everyone in the Occupational Safety and
Health Administration (OSHA) takes the Agency's mission very seriously,
and they also join in my condolences to those affected by this tragedy.
We received a copy of the legislation last week, and have begun our
analysis of the bill. However, in this short time we have not completed
our analysis and cannot provide definitive comments on the proposal.
More importantly, we have not finished our investigation of the
accident at Imperial Sugar and cannot at this time say that the rule
that is being proposed by the legislation would have prevented this
tragedy. What I can do is to tell the Committee about our ongoing
investigation of the Port Wentworth fire and our overall efforts
related to combustible dust hazards.
OSHA's investigation of the explosion, which began within two hours
of the accident, is being coordinated by our Savannah Area Office.
After learning of the accident, OSHA immediately dispatched two
compliance officers to the scene. Several additional compliance
officers as well as an attorney from the Department's Regional
Solicitor's Office have also participated in this investigation. Six
OSHA personnel are on-site working under the supervision of senior
staff. An explosives expert from the National Office was sent to the
site. In addition, OSHA has retained an outside expert on combustible
dust to provide technical assistance. OSHA will inform the Committee of
our findings when the investigation is completed.
In the immediate aftermath of the explosion, OSHA worked with the
local fire marshal to help ensure the safety and health of first
responders (firefighters, ambulance crews, etc.) and prevent additional
injuries or deaths from occurring. OSHA helped ensure that all
emergency responders used proper safety equipment. OSHA compliance
personnel conducted air sampling so that no one on site was exposed to
a release of contaminants or toxic substances, such as asbestos. In
fact, OSHA declared an administration building ``off-limits'' when OSHA
inspectors found potentially flammable vapors caused by sugar
fermentation.
On February 9, the Bureau of Alcohol Tobacco and Firearms (ATF)
assumed command of the accident site and a team of investigators from
the Chemical Safety Board (CSB) arrived at the site. OSHA negotiated an
agreement with all parties to ensure that evidence at the site would be
preserved for the investigation. The negotiation also ensured that,
before any undamaged portions of the facility are returned to operation
and employees allowed to enter, OSHA compliance officers will conduct a
thorough inspection so that all known hazards are abated.
The sugar refinery investigation involves three companies with 112
employees on site at the time of the explosion. Early indications
suggest that the Imperial Sugar refinery explosion occurred due to an
excessive accumulation of combustible sugar dust. OSHA is attempting to
determine the ignition source that led to the explosion, and whether
any OSHA standards were violated. If that is the case, the Agency will
issue citations and propose appropriate penalties.
Now I will discuss OSHA's overall efforts concerning combustible
dust hazards. OSHA has recognized these hazards for many years, and has
been implementing various initiatives and standards to deal with the
problem. It is important to point out that OSHA already has tough
standards on the books that address combustible dust hazards such as
the standards covering general requirements for housekeeping, emergency
action plans, ventilation, hazardous locations, and hazard
communication.
For example, the most important standard for grain elevators and
similar facilities is our Grain Handling Standard, which includes
requirements for housekeeping, ventilation, electrical safety, hazard
assessment, employee training and other requirements. OSHA's
Ventilation Standard also applies in some situations outside grain
facilities. If the facility's operations are covered by 29 CFR 1910.94,
Ventilation, the facility operator is required to follow the standards
requirements on abrasive blasting; grinding, polishing, and buffing
operations.
OSHA's housekeeping requirements apply to hazardous surface dust
accumulations (i.e., dust accumulations outside the dust collection
system or other containers, such as mixers.) For example, dust
accumulations exceeding \1/32\-inch covering an area of at least 5% of
the total area of the room with an upper limit of 1000 square feet and
determined by laboratory analysis to be combustible are subject to
OSHA's housekeeping standard. In general, the housekeeping standard
requires that ``all places of employment, passageways * * * and service
rooms shall be kept clean * * * and the floor of every workroom shall
be maintained in a clean * * * condition.'' OSHA housekeeping
requirements also apply to storage areas and in facilities like power
plants that handle coal. OSHA's Process Safety Management standard can
apply if the dust in question appears on the list of Highly Hazardous
Chemicals (Appendix A to 29 CFR 1910.119) and is present in quantities
greater than or equal to the threshold for PSM requirements. If
laboratory analysis of dust collected by an OSHA inspector indicates
that the dust meets certain combustibility requirements, standards
related to electrical safety will apply. Where Powered Industrial
Trucks are used OSHA standards at 29 CFR 1910.178(c)(2)(ii) and (vi)-
(ix) and 1910.178(m)(11). These include safety requirements for fire
protection, design, maintenance and use of a variety of power trucks
including their suitability for hazardous combustible dust locations.
The hazard communication standard, 29 CFR 1910.1200, requires all
employers to provide information to their employees about the hazardous
chemicals to which they are exposed, by means of a hazard communication
program, labels and other forms of warning, material safety data
sheets, and information and training. The definition of physical
hazards includes flammable solids (see the definition in 1910.1200(c)),
which in the course of normal conditions of use could become
combustible dusts.
OSHA requirements for provision of adequate means of egress as well
as general OSHA fire protection requirements may also apply, as will
OSHA standards related to bakery equipment (hazards in sugar and spice
pulverizers); and sawmills (in connection with defects in the design,
construction, and maintenance of blower collecting and exhaust systems.
Of the standards outlined above, the most important is
housekeeping. When dust is not allowed to accumulate, the chances for a
combustible dust explosion are vastly reduced.
While OSHA has a number of standards and policies on combustible
dust, we understand that employers may not be aware of the hazard and
OSHA's policies. Therefore, OSHA has provided outreach to our
stakeholders as well. OSHA Area and Regional offices conduct outreach
sessions on many topics, including combustible dust hazards. OSHA has
also reached out to the fire safety profession, as well as our state
plan enforcement and consultation partners. State plan and consultation
staff have then taken various efforts to reach out to employers and
employees within their states.
In 2005, OSHA issued a Safety and Health Information Bulletin, or
SHIB, titled Combustible Dust in Industry: Preventing and Mitigating
the Effects of Fire and Explosions. This comprehensive guidance
highlights the hazards associated with combustible dusts; the work
practices and engineering controls that reduce the potential for a dust
explosion or that reduce the danger to employees if such an explosion
should occur; and the training needed to protect employees from these
hazards.
In light of the tragedy in Savannah, I recently sent a letter,
along with a copy of OSHA's Combustible Dust SHIB, to an estimated
30,000 employers across the country in industries where combustible
dusts are commonly found. In this letter I urged employers to review
the information and reminded them of their responsibilities to prevent
combustible dust hazards to help prevent future tragedies. I also
reminded them of the assistance OSHA's onsite Consultation Program can
provide confidentially and free of charge.
The Agency also implemented several proactive measures related to
enforcement. OSHA has implemented a major enforcement initiative by
developing a comprehensive National Emphasis Program (NEP) for
Combustible Dust that took effect on October 18, 2007. The NEP is based
on OSHA's expertise and experience in identifying and mitigating
combustible dust hazards, as well as a regional Special Emphasis
Program (SEP) on combustible dust implemented in 2004. It focuses on
workplaces where combustible dust hazards are likely to be found and
lists the different types of materials that can lead to combustible
dust. Industries covered by the NEP include agriculture, food
processing (including sugar), chemicals, textiles, forest products,
metal processing, tire and rubber manufacturing, paper products,
pharmaceuticals, recycling operations and coal handling and processing
facilities. These industries deal with a wide range of combustible
dusts with differing properties including metal dusts such as aluminum
and magnesium, wood dust, coal and carbon dust, plastic dusts,
biosolids, certain textile materials and organic dusts such as paper,
soap, dried blood and sugar.
In particular, our inspectors are to look for violations of our
existing standards on dust accumulations and sources of ignition, which
are basic ingredients of a combustible dust explosion.
As of last week, OSHA had conducted 51 inspections under the
National Emphasis Program. These inspections have resulted in findings
of 109 violations of existing standards known to mitigate combustible
dust hazards. In addition to the standards I mentioned earlier, these
also include a standard covering powered industrial trucks. In most
combustible dust accident investigations, we have found that if
employers had followed the applicable standards, they would have
mitigated these hazards and prevented the explosions. OSHA has recently
expanded the Combustible Dust NEP, and as a result, the Agency is
planning to conduct at least 300 inspections this year. Moreover,
refinements and improvements to the expanded NEP have resulted in a
special concentration on the industries with a high probability of
high-consequence combustible dust explosions.
Over the last three years, OSHA has placed a greater emphasis on
training our compliance officers on combustible dust hazards by
providing specialized training to several hundred inspectors. The OSHA
Training Institute has developed a comprehensive three and one-half day
course on Combustible Dust Hazards and Controls, which it began
offering last December. OSHA has also provided training on combustible
dust hazards to our state enforcement and consultation program
partners.
OSHA has also disseminated other compliance assistance materials
related to combustible dusts, including three different eTools found on
our public website. These eTools are ``stand-alone,'' interactive, web-
based training tools on various occupational safety and health topics.
They are highly illustrated and utilize graphical menus. OSHA has
eTools on woodworking, sawmills and shipbuilding, all of which have
components that address combustible dust hazards. OSHA disseminates an
80-page publication, available on the website, entitled Guide for
Protecting Workers from Woodworking Hazards that has a section that
also addresses dust hazards. In 1998, OSHA released a Hazard
Information Bulletin dealing with dust explosion hazards in the textile
industry.
Last week, we posted a combustible dust web page to make it easier
to find these guidance materials and other helpful resources. We are
also in the process of developing new guidance materials including a
hazard communication alert and a combustible dust fact sheet.
I know you are familiar with the U.S. Chemical Safety and Hazard
Investigation Board's (CSB) November 2006 report dealing with
combustible dust hazards. The CSB report made five recommendations to
OSHA. First, CSB recommended that OSHA establish a National Emphasis
Program focused on combustible dust. We initiated a Special Emphasis
Program on combustible dust in 2004 which we expanded into a National
Emphasis Program in October 2007. Second, CSB recommended that we offer
training through the OSHA Training Institute on recognition of
combustible dust hazards and preventions of explosions. We have been
offering such training for several years, and recently expanded that
training with a special 3\1/2\ day course. CSB also recommended that
OSHA revise its hazard communication requirements to address
combustible dust. The results of our NEP have indicated the need to
clarify that HazComm requirements also cover combustible dusts, and we
have begun work on appropriate guidance to communicate this to
employers.
CSB recommended that we recommend to the United Nations that the
Globally Harmonized System hazard communication agreement awaiting
international ratification be modified to address combustible dust
hazards. It is the U.S. position at the United Nations Subcommittee of
Experts on the GHS that changing the GHS during the implementation
process could cause confusion and complicate compliance efforts by
creating a ``moving target'' for those who are attempting to evaluate
or comply with new regulatory requirements. GHS does not define
combustible dust, but does address these hazards by requiring they be
identified on safety data sheets. Furthermore, current GHS coverage of
combustible dust does not conflict with current OSHA policy and
practice. For these reasons, OSHA does not intend to inform the United
Nations of a need to amend the GHS to include additional criteria for
combustible dust hazards at this time, but we may do so later.
Lastly, CSB recommended OSHA issue a combustible dust standard. Let
me be clear that we have a number of standards that apply to situations
where combustible dust hazards may be found. Again, these include
standards that cover general requirements for housekeeping, emergency
action plans, ventilation, hazardous locations, and hazard
communication. If employers follow the existing requirements
established by these standards, employees will be protected from
combustible dust hazards. If our investigation of the Imperial Sugar
accident or our forthcoming inspections indicates that our existing
standards do not adequately mitigate the potential for combustible dust
hazards, we will assess the need for regulatory changes.
We believe that the Agency has taken strong measures to prevent
combustible dust hazards, and that our multi-pronged approach, which
includes effective enforcement of existing standards, combined with
education for employers and employees, is effective in addressing
combustible dust hazards. We would like to emphasize that the existence
of a standard does not ensure that explosions will be eliminated. The
effectiveness of a standard always depends on how well employers
implement the requirements, and many tragic accidents in the last
decade could have been avoided or minimized if employers had complied
with existing OSHA standards. Secondary dust explosions resulting from
excessive dust accumulations resulted in many of the casualties in
recent catastrophic events.
Nonetheless, the Agency is carefully considering all options to
deal with combustible dusts, including rulemaking. While we are still
conducting a full analysis of the proposed legislation, we are
continually evaluating our current combustible dust efforts, and are
eager to learn how effective our new National Emphasis Program will be.
Let me reiterate that we are saddened by the tragic loss of life
that resulted from the Imperial Sugar explosion. We will not rest until
we ensure that all employees go home safely to their families and
friends at the end of every work day.
Thank you Mr. Chairman. I would be happy to answer any questions.
______
Chairman Miller. Thank you.
Ms. Miser?
STATEMENT OF TAMMY MISER, HUNTINGTON, IN
Ms. Miser. Thank you for inviting me here today to testify.
And I would like to start on the night of October 28, 2003.
This is the night of the aluminum dust explosion at Hayes
Lemmerz International, Huntington, Indiana.
My brother, Shawn Boone, and two coworkers went in to
relight a chip melt furnace, and they decided to stick around a
few minutes, just to make sure that everything was okay. And
Shawn's back was towards the furnace when they were picking up
their tools, and there was a blast.
Some say Shawn got up and started walking towards the door,
and then there was a second, more intense blast.
Shawn did not die instantly. He laid on the building floor
while the aluminum dust burnt through his flesh and muscle
tissue. The breaths that he took burnt his internal organs, and
the blast took his eyesight.
Shawn was still conscious and asking for help.
Hayes never bothered to call the family and let us know
that Shawn was injured or that there was any kind of explosion
at all. We received a call from a friend of my husband Mark's.
And he told us that Shawn was on his way to Fort Wayne.
When Mark reached the hospital where they had all been
transferred, she asked if Shawn was there. Well, they had an
unidentified white male there, so nobody had even bothered to
identify who my brother was. The only way he was identified by
his apparent body weight and structure, because he had no body
hair and no physical markings to identify.
We drove 5 hours that night, hoping and praying it was not
my brother.
This still brings about guilt, because I would not wish
this on anybody.
We arrived, and the on site pastor told us to prepare
ourselves, because he had not seen anything like that since the
war. And the doctors told us that they were not going to
bandage him. They refused to treat it, because they said that,
even if they took his limbs, his internal organs were burned
beyond repair. And that was pretty apparent by the black sludge
they were pumping out of his body.
I went in to see my brother, and maybe somebody that did
not know him would not recognize him, but he still had some
remnants of his eyebrows--his red eyebrows--and he also had the
same face. It was splitting and a little swollen, but he was
still my Bub.
Our family immediately started talking about taking him off
of life support, and if we agreed to do this, we had ultimately
given up on my brother. It would mean that we were taking his
last breath.
And even though we were not to blame, we were still making
that decision. And we did. We watched the machines stopped, and
we watched my brother die before our eyes. We watched him take
his last breath.
And the two things that I can always remember, and it never
leaves, are his last words--"I am in a world of hurt"--and his
last breath.
I truly feel for these families at the Imperial Sugar
plant. All of them have had horrible injuries and deaths,
because I know where they are. And I know where they have been
and I know where they are going.
I am really disgusted and hurt. It is the same hurt I felt
when my brother was killed, because this information was out
there, and it could have saved him. And it could have saved
these people at the Imperial Sugar plant.
Everybody knows what caused this explosion. And it would
have been nice to prevent it. We know it is feasible, and it is
beyond negligent to expect companies to do this on a voluntary
basis.
I really strongly believe in OSHA, and I believe it is
necessary, but only if it is working. And I felt in this case
it has failed, and it has really failed miserably. Not only
have they failed these families, but the previous ones.
I followed the Chemical Board study, and I came up for that
hearing. And I was really excited, because I really thought,
with them giving recommendations, something would be done. I
thought, finally, something would be done.
But the only thing that did result in that was a bulletin
on combustible dust. And at the very beginning, the first
things that it says, it says, ``this safety and health
information bulletin is not a standard or a regulation. It
creates no legal obligations.''
And I do not see how this can be expected to be taken
seriously, when they are sitting there telling them, right off
the bat, that there is really no legal obligation for this.
I remain hurt and angry at the lack of compassion by the
corporations and OSHA, because no matter how much time goes by,
the pain never goes away. It never fades, and the incident
never dies. Our losses are lifelong, needless sentences because
a few people could not or would not do what was right.
And in conclusion, I would ask you to please support this
bill for combustible dust. Thank you.
[The statement of Ms. Miser follows:]
Prepared Statement of Tammy Miser
Congressman Miller, Ranking Member McKeon, I would like to thank
you for inviting me to testify on the Combustible Dust and Fire
Protection Act of 2008.
I will start on October 28 2003, the night of the aluminum dust
explosion at Hayes Lemmerz in Huntington, Indiana.
My brother Shawn Boone and a couple coworkers went in to relight a
chip melt furnace Shawn and his coworkers decided to stick around a few
minutes to make sure everything was ok and then went back to gather
tools. Shawn's back was toward the furnace when the first explosion
occurred. Someone stated that Shawn got up and started walking toward
the doors when there was a second and more intense blast. The heat from
that blast was hot enough to melt copper piping.
Shawn did not die instantly. He laid on floor smoldering while the
aluminum dust continued to burn through his flesh and muscle tissue.
The breaths that he took burned his internal organs and the blast took
his eyesight. Shawn was still conscious and asking for help when the
ambulance took him.
Hayes Lemmerz never bothered to call any of my family members to
let them know that there was an explosion, or that Shawn was injured.
The only call we received was from a friend of my husband, Mark, who
told them that Shawn was in route to a Ft. Wayne burn unit.
When Mark asked the hospital where Shawn was we found that no one
even bothered to identify him. We were told that there was a ``white,
unidentified male'' admitted to the unit. When Mark tried to describe
Shawn, the nurse stopped him to say that there was an unidentified male
with no body hair and no physical markings to identify. So my Shawn was
ultimately identified only by his body weight and type.
We drove five hours wondering if it really was Shawn, hoping and
praying that it wasn't. This still brings about guilt because I would
not wish this on anyone else. We arrived only to be told that Shawn was
being kept alive for us. The on site pastor stopped us and told us to
prepare ourselves, adding he had not seen anything like this since the
war. The doctors refused to treat Shawn, saying even if they took his
limbs, his internal organs were burned beyond repair. This was apparent
by the black sludge they were pumping from his body.
I went in to see my brother. Maybe someone who didn't know Shawn
wouldn't recognize him, but he was still my brother and you can't spend
a lifetime with someone and not know who they are. Shawn's face had
been cleaned up and it was still very swollen and splitting, but he was
still my Bub.
The family immediately started talking about taking Shawn off of
life support. If we did all agree, I would have ultimately given up on
Shawn, I would have taken his last breath, even if there was no hope
and we weren't to blame. I still had to make that decision. Watch them
stop the machines and watch my little brother die before my eyes.
But we did take him off and we did stay to see his last breath. The
two things I remember most are Shawn's last words, ``I'm in a world of
hurt.''
And his last breath.
I truly feel for the Imperial Sugar Plant families that have
horrible injuries and who have had deaths. I know where they are, where
they have been and where they are going and I am truly disgusted and,
to be honest, hurt. It is the same hurt I felt after the loss of my
brother, because I knew the knowledge was there that could have
prevented this and saved him.
Everyone already knows what caused the explosion at the Imperial
Sugar plant. But it would have been nice to prevent this from happening
in the first place. We know that it's feasible to prevent these
explosions. And it is beyond negligent to expect a company that knows
about these hazards to voluntarily comply, instead of making it a
requirement.
I believe strongly that OSHA is a necessity, but only if it is
working. In this case it has failed and failed miserably. Not only have
they failed these families but also the families that had lost loved
ones in the dust explosions of 2003 that the CSB studied. Like many of
those families, I closely followed the CSB's investigation of the
explosion that killed Shawn and the CSB's dust study. I came to
Washington to testify at the CSB hearing and was very happy when the
CSB issued its recommendations to OSHA.
Finally, I thought, something would get done.
But there has been no response from OSHA. In essence, the heads of
OSHA have told the families that their loved ones' lives were not worth
developing a standard, even when most of the work had been done by the
CSB and by the NFPA.
OSHA put out a bulletin on combustible dust, but at the very
beginning it says ``This Safety and Health Information Bulletin is not
a standard or regulation, and it creates no new legal obligations.''
How seriously do you think companies will take it?
I remain hurt and angry at the lack of compassion and concern by
the corporations and OSHA. You see no matter how much time goes by, the
pain Never Goes Away. It never fades; the incident and the aftermath
never dies! Our losses are lifelong, needless sentences because a few
people couldn't or wouldn't do what was right.
I took my grief and my anger and created an organization called
United Support & Memorial For Workplace Fatalities. It's a place for
families to mourn the needless loss of their loved ones and a place to
fight to make sure it doesn't happen to any other families like the
families in Savannah. That's how I get through, that's how I continue
to remind myself it was the right decision. That is also why I plan to
keep in this fight until there is some safe haven for others working
around combustible dust.
In conclusion I would ask that you please take in to consideration
what these incidents do to families, coworkers and communities, that
you not let our loved ones die in vain and help us keep other families
safe from the dangers of combustible dust. Please support the
combustible dust bill.
Thank you.
______
Chairman Miller. Thank you for your testimony. Appreciate
how, I think all of us can, how difficult it is for you.
Mr. Sarvadi?
STATEMENT OF DAVID SARVADI, ATTORNEY, U.S. CHAMBER OF COMMERCE
Mr. Sarvadi. Thank you, Mr. Chairman.
These kinds of hearings are always difficult for all the
participants. And I want to express my personal condolences to
Ms. Miser, and to the people in Fort Wentworth who suffered
this tragedy.
I have been around situations like this before. It affects
not just the families, but the friends, neighbors and
communities. And I want to support what Mr. Barrow said this
morning. This tragedy in Fort Wentworth, as the tragedy Ms.
Miser suffered, is going to affect a lot of people for a long
time.
I want to thank the committee for inviting me to
participate, and for holding this hearing. I am here to
represent the Chamber of Commerce, and to provide some insight
from our perspective on the proposed legislation.
I want to say at the outset that I have submitted a written
statement to the record, and I hope that will be introduced.
And I will just make a few remarks here as we talk about this
problem.
I have been doing industrial hygiene and occupational
safety and health for nearly 35 years. One of my earliest
positions was in a company where we actually had to deal with
combustible dusts, flammable liquid, an enormous array of
occupational hazards in the workplace.
And I can tell you that that experience leaves me humble
every time I see an incident like this. And the reason I am
humble about it is because I am not always sure I understand
exactly what happened.
One of the things that I did in preparing for the testimony
was, I went back and looked at the CSB's report on the case in
North Carolina, the West Pharmaceutical case. And what struck
me about that particular report was the fact that a lot of the
things that we are talking about in the NFPA standard were
actually done.
The engineers had paid attention to some of these issues.
They had thought about them. They had had planning meetings
about the kinds of things that they were going to be doing,
what kinds of hazards they can encounter.
I am not suggesting that they were infallible. It is
obvious that they were not.
But what makes me humble about these things is the fact
that, not only the engineers, but everybody who appeared at
that West Pharmaceutical plant, missed the question of what was
going on above the ceiling in that facility.
And I will tell you straightforwardly, I expect I would
have missed it as well. And I have looked at these kinds of
problems for many, many years.
Without getting into any great detail--I can certainly talk
about this at length--but I can tell you that, given the way
that the plant was designed, given the materials that were
involved, I do not think it was knowable in advance that this
dust would accumulate above the ceiling, because of the nature
of the chemicals that were involved, and the nature of the
processes.
And that is one of the difficulties that we have. People
are fallible. They make mistakes.
The one common theme that I have heard so far from the
previous three speakers, and also from Mr. Barrow and Mr.
Kingston this morning, is that we know how, in many cases, to
prevent these accidents. What the problem seems to be is that
the people who are actually involved--the employers and
employees involved in these facilities--do not have the
information.
And the one real serious deficiency that I see in regard to
solving the problem in the future, is that we have not done an
adequate job, and have not even begun talking about, how do we
get that information into the hands of the people that need it,
and make it effective?
I want you to understand, business is not opposed to having
standards. Standards give us guidance. Standards give us
certainty. We understand then what our obligations are when the
standards are clear and unambiguous.
The problem with the NFPA standards is that they are often
more ambiguous in certain aspects than we would like them to
be. They make it difficult not only for employers to comply,
but for the agencies to enforce them.
So, it is really important to spend the time in
transferring a standard from a voluntary compliance program
like NFPA to a mandatory standard that would be enforced
through the force of law, not because we want to water down the
standard or change it, but to make sure that it gives clear
instructions and clear understanding to everybody involved.
So, we know that the information is present and it is
available. The question is, are we going to use it? And I can
tell you that the Chamber and the people that I work with, the
employers that I work with, are committed to making these
standards work, and to work with OSHA to come up with standards
that are effective, and will do so, hopefully, in a process
that OSHA adopts once the process of investigation in Savannah
is completed.
Thank you, Mr. Chairman, for your time and attention.
[The statement of Mr. Sarvadi follows:]
Prepared Statement of David G. Sarvadi, Esq., Keller and Heckman, LLP,
on Behalf of the U.S. Chamber of Commerce
Good morning. Mr. Chairman, Members of the Committee, and invited
guests, thank you for the opportunity to participate in this important
proceeding.
My name is David Sarvadi. I am an attorney with the Washington,
D.C., law firm of Keller and Heckman LLP, and my purpose is to provide
you with some insights on H.R. 5522 from the perspective of someone who
has managed combustible dust issues in a manufacturing environment and
has extensive experience with OSHA rulemaking and enforcement
activities. I will also offer some suggestions on how I believe the
bill could be improved.
My own training and education includes a Master's of Science Degree
in Hygiene from the department of Occupational Health at the University
of Pittsburgh's Graduate School of Public Health, so I started life as
a budding scientist. I received a law degree from George Mason
University in 1986, and have been a certified industrial hygienist
since 1978. I joined Keller and Heckman LLP in 1990. Early in my career
I worked at a company that actually had to deal with combustible dust
hazards, and I am generally familiar with the methods of control,
although by no means an expert on the topic.
I joined Keller and Heckman in 1990. At Keller and Heckman LLP, we
represent and assist employers in meeting their obligations under a
variety of federal and state laws, as well as international treaties
and the laws of Canada, Europe, and many countries of the Far East. In
particular, we help clients maintain progressive health and safety
programs intended to protect their employees in their workplaces, as
well as to comply with national and international health and safety
laws and standards. The Occupational Safety and Health Act is the
primary focus of our compliance assistance here in the U.S.
I am appearing in this hearing on behalf of the U.S. Chamber of
Commerce. Any views expressed herein should not be attributed to my
firm, my partners, or any other entities, including any of our clients.
I am here as a member of the Chamber's committee with responsibility
for occupational safety and health matters, and as a person with a long
standing interest in the topic of occupational safety and health. I
have practiced industrial hygiene and occupational health and safety
law now for more than 35 years.
The primary issues before us are whether the Occupational Safety
and Health Administration (OSHA) should be directed to adopt a standard
to address the hazards of so-called ``combustible dusts,'' and, if so,
what direction or guidance should be provided to OSHA in proceeding to
develop and adopt such a rule. Recent accidents, including the tragic
explosion at the Imperial Sugar plant near Savannah, re-emphasize the
importance of vigilance on safety and health matters. There is no
question that there are significant hazards associated with processing
dry materials that have the capacity to burn. But there is also no
question that both the hazards and methods for controlling them have
been recognized for a long time.
I want to commend OSHA for one thing. I have reviewed its safety
and health bulletin on combustible dust and it is excellent. It covers
in understandable terms the kinds of considerations that come into play
when combustible dusts are present, and highlights both OSHA and
voluntary standards that are applicable in various circumstances.
Importantly, it lists not only voluntary National Fire Protection
Association (NFPA) standards that apply, but also OSHA standards as
well. It is important to remember that the general housekeeping
standard, the electrical standard, and others have specific
requirements that apply to workplaces where combustible dusts are
present.
OSHA has also initiated a National Emphasis Program (NEP) of
inspections designed to ensure that employers are following the
applicable OSHA standards and generally recognized practices in this
area. Actions are being taken to raise the level of awareness to issues
of combustible dust, led by OSHA, and there are existing solutions that
are being used right now.
It is also important to remember that the primary external
oversight of combustible dust hazards is provided by the loss control
representatives of the employer's insurance carrier, the local building
inspectors and the local fire department, all of which are likely to
visit sites with combustible dust issues far more often than OSHA
compliance personnel.
Employers and employees have a mutual interest in safe operations.
When a tragedy occurs, it is the family, friends, and neighbors of the
people in the workplace who are injured and affected. Even if no
injuries occur, an accident disrupts lives and the livelihood of all
employees of the organizations in which they occur. So there is a
substantial and continuing incentive to take all reasonable steps to
mitigate hazards.
For most employers, OSHA standards provide a floor for their
compliance programs. Employers prefer certainty as to their
obligations, and clear and unambiguous standards, reasonably
interpreted and enforced, are welcome. Indeed, in the great tradition
of the American way, citizens have joined together since our country's
earliest beginnings to work together to improve our common good.
Standards are an important lubricant of commerce in the U.S. The
earliest days of the industrial revolution in the U.S. highlighted the
difficulty encountered when competing organizations used different
designs for things like railroads. Only when standard gauge track and
equipment came into common use did the railroads really begin to
prosper. Thus, the use of consensus standards to facilitate commerce is
not only generally acceptable, but history shows the importance of
sharing information and approaches to problems.
As organizations grow, bureaucracies develop, and the
implementation of standards depends more and more on the development of
paper trails. To the extent that such bureaucratic activities detract
from the primary activity, it will be damaging rather than enhancing to
the objectives being sought. In that regard, broad recordkeeping
requirements that do not have a direct relationship to safety and
health should be minimized. As one of my clients says, when looking at
all the recordkeeping requirements they have compared to what they
actually find useful, ``not everything we count counts.'' Adoption of
OSHA standards should take this balancing of interests into account.
The Proposed Bill
Given the recent publication of the OSHA bulletin, the recently
initiated OSHA NEP inspections, the prominent role of insurance
carriers, building inspectors and local fire department officials, and
the invigorating impact of these developments on their collective
efforts, some would suggest waiting to assess the impact of those
collective efforts whether there is a need for an OSHA standard in this
area. For others, that approach may not be satisfactory.
In no way do I mean to make light of the tragic dust explosions
that have occurred. Dust explosions have occurred in industry for many
years, and what we do not know is whether these recent cases reflect
random events as the rate declines because of improvements in equipment
and technology, or whether the number of events is occurring at an
increasing rate, or at least is not declining. This is a question that
should be answered, because it may tell us that what we believe works
in fact is not as effective as we would like.
A properly developed standard may be appropriate. However, as
tragic as these events have been, the situation is not one that calls
for the rushed adoption of an emergency temporary standard. Such a rush
to judgment fails to provide the time needed to determine what measures
should be required.
OSHA has explicitly recognized the fundamental problems presented
by adopting national ``consensus'' standards as regulatory standards
(55 Fed. Reg. 47660, November 14, 1990):
The organizations which produce consensus standards expect that
compliance will be voluntary, based on agreement among interested
parties regarding the need for particular precautions. It is implicit
that the primary concern of the standard-producing organizations is to
improve the overall safety of a workplace by fostering compliance with
the spirit, rather than the letter, of the consensus standards. On the
other hand, OSHA standards, including those adopted from consensus
standards, impose mandatory burdens, because of the Agency's statutory
duty to require protection of employee safety and health.
For example, NFPA 654 uses the word ``should'' 113 times, and would
have to determine whether to change the ``should'' to a ``shall'' or
delete the associated provision from any proposed rule.
Furthermore, the latest edition of NFPA 654 was adopted in 2006.
The introduction notes that new explosion technologies were adopted in
the 1994 and 1997 editions of that standard. They cannot simply be
applied, without grandfathering provisions, to every building that was
constructed or modified over the last century. Some accommodation needs
to be made for facilities or processes that were built or modified in
accordance with local approvals issued under the then applicable
building codes. NFPA 654-2006 specifically addresses the issue of
prospective v. retroactive application and provides as follows:
1.5 Retroactivity.
The provisions of this standard reflect a consensus of what is
necessary to provide an acceptable degree of protection from the
hazards addressed in this standard at the time the standard was issued.
1.5.1 Unless otherwise specified, the provisions of this standard
shall not apply to facilities, equipment, structures, or installations
that existed or were approved for construction or installation prior to
the effective date of the standard. Where specified, the provisions of
this standard shall be retroactive.
1.5.2 In those cases where the authority having jurisdiction
determines that the existing situation presents an unacceptable degree
of risk, the authority having jurisdiction shall be permitted to apply
retroactively any portions of this standard deemed appropriate.
1.5.3 The retroactive requirements of this standard shall be
permitted to be modified if their application clearly would be
impractical in the judgment of the authority having jurisdiction, and
only where it is clearly evident that a reasonable degree of safety is
provided.
It is important to note that the proposed legislation does not
really address combustible dust hazards, but would have OSHA adopt
general principles similar to the other process based standards. This
approach, which was derived from standards developed by the military
during World War II and through the decades since, take a systematic
approach to evaluation of processes, hazards, and consequences of
failure. No one doubts that some form of this kind of analysis is
important in many circumstances, but it is the level of detail that is
applied in any individual case that is the detail in this case where
the devil is lurking. The proposed language would apply ``in any . . .
industry in which combustible dust presents a hazard. . . .'' This
phrase is preceded by a list of processes, industries, and products
that presumably would be covered. Unfortunately, the language used
fails because of the ambiguity inherent in such broad terminology. In
the way it is phrased, it is circular. A facility using combustible
dust is covered if the combustible dust is a hazard. As a lawyer, such
language in encouraging because it inevitably leads to litigation over
what it actually means.
I take issue with the proposed language that somehow Material
Safety Data Sheets (MSDS) ``often'' do not adequately address
combustible dust hazards. I am not sure what is meant by this
statement. It appears to have been based on a statement in Combustible
Dust Report issued by the Chemical Safety Board to the effect that the
MSDS for combustible dusts were ``inadequate.'' The intent of the OSHA
Hazard Communication Standard was to require chemical manufacturers and
suppliers to communicate the inherent health hazards and physical
hazards, such as the hazard of a dust explosion, to downstream
customers. Its purpose was not to require chemical manufacturers and
suppliers to determine how each ultimate user would use the product and
to specify the design of the user's equipment, processes, and
facilities, and other measures that might be needed to control that
hazard.
It is important to remember that the MSDS conveys information about
the chemical it covers, and that it is the responsibility under the
Hazard Communication Standard (HCS) of the employer whose employees use
the chemical to take that information and apply it to their workplace.
It is not the job of the MSDS, nor in my humble opinion can it be, to
educate the employer-customer about the panoply of requirements that
may be attendant to adequately controlling hazards presented by
chemicals. Stated differently, if we believe employees or employers are
not reading current MSDSs what makes any of us here think they will
read longer more comprehensive ones. Part of the job of a safety
program in the context of the HCS is to consolidate requirements and
knowledge into usable and memorable information for managers and
employees. In this sense, the CSB report misinterprets the intention
and purpose of the MSDS in the HCS scheme.
These Hazards Are Well Known
Combustible dust explosion and fire hazards have long been
recognized. The US Bureau of Mines has long conducted research on
explosive and combustible dusts, and NFPA standards and industry safety
guidelines go back to the same period, but continue to evolve. There
are 21 from NFPA alone listed by OSHA in its bulletin. A textbook I
have on the subject of industrial hygiene has an entire 30-page chapter
on the topic, published in 1963.
The fact that there is so much information on the topic suggests
that it is not a lack of information that is important, but a lack of
knowledge about the information, even about its existence. Getting
information into a form that is easily accessible and usable is a
critical and perhaps missing step. With the Internet, we can access
huge amounts of data, but we get no usable information until a person
applies intelligence and organizes it. Perhaps the appropriate approach
should be to provide some money for educating employers and employees
about the hazards of combustible dusts, particularly unusual situations
like some of the ones described in the CSB report, and developing some
of these consolidated information sources. See OSHA's bulletin.
Voluntary Standards and Rulemaking
Some will suggest that OSHA should simply adopt the voluntary
standards that exist. To the extent that the standards reflect actual
consensus about a particular topic, those sections that are mandatory
can be useful in preparing regulatory provisions. Nevertheless, they
need to be reviewed in an open process by OSHA because they are not
always free of bias and may not represent true consensus among affected
parties. I previously testified in 2006 at a subcommittee hearing on
this issue. Congress assumed that consensus standards were the process
of an open and transparent process. When they are, the standards do
represent the best practices of the affected parties. But when the
standards are contentious, it is more often the case that one or
another group has managed to impose its will, with the result that the
process in which the standard was adopted is not the equivalent of the
mandatory notice and comment proceeding that is typically required for
government standards.
Following normal rulemaking procedures is important from another
perspective. To the extent that people feel they have been fairly
heard, and the decision is made on the basis of objective technical
criteria, they are more likely to accept it. We need such acceptance
because we need voluntary compliance with these requirements to ensure
true safety in the workplace. It will do no good to impose standards
that in the end lead to more disputes and contention because, again, it
will distract from the principal objective.
Thus, we believe that it is imperative to recognize that a process
longer than 90 days will be needed for OSHA to even adopt an interim
standard. The process is inherently longer the more complicated the
issue. Our experience of late is replete with unintended consequences
of well-meaning but misguided action, particularly on the part of
government. Short-circuiting the process by mandating changes within
such short time frames will lead to more unintended consequences.
An example will help. Suppose such a standard is adopted, and that
it is determined that one of the NFPA standards should be come
mandatory. Normally, standards are forward-looking, and one critical
aspect that is fleshed out in the rulemaking process is what to do
about existing installations. Should they be upgraded? How long will
employers be allowed to bring facilities into compliance? Should
existing designs be grandfathered? How far back should such a
grandfather period go? I would suggest that these questions need to be
answered before a comprehensive standard is imposed on a broad and
ambiguous group of employers and employees.
It is simply wrong to suggest that OSHA can reasonably adopt the
NFPA standards within 90 days. The NFPA standard 654, for example, is
complex, on the one hand containing detailed technical specifications
for the performance of critical process equipment and components, and
on the other hand, including programmatic requirements such as those
contemplated in the proposed legislation. Adopting this kind of
standard without the normal array of feasibility and other analyses
through an accelerated process is a recipe for difficulty if not
disaster.
The complexity of the NFPA standards also suggests that having
standards adopted through the legislative process is not a good idea.
NFPA standards, including NFPA 654, are staffed with experts with many
years of experience, most of whom are engineers. Engineers are trained
in assessing the competing demands that are inherent in any design
process, making decisions and trade-offs that are informed by
engineering judgment to achieve what are hopefully optimum results. The
expedited standard adoption process contemplated by the bill would
deprive interested and affected parties the opportunity to be heard,
and would result in the imposition of a standard likely to be less
effective.
The CSB Reports
The CSB summary report contains a chart showing an increasing
number of events since 1980. CSB suggests that the data are unclear as
to their real implication because they may be incomplete. Is this not
an important question to answer before embarking on a wholesale
regulatory change that has the potential to impact a very large segment
of our economy? I believe it is.
I also believe that the lack of a recommendation on training and
education in light of conclusions that management as well as employees
were unaware of combustible dust hazards in most of the cases described
is striking. A national emphasis program incorporating an education and
outreach element would seem to be in order. OSHA has had considerable
success in its efforts to work with employer groups to get information
ant training in the hands of those who need it. Given the scope that
CSB suggests exists, it would seem more urgent to provide training and
education than to impose an untested standard on the economy.
Education plays an important role in enforcement as well.
Compliance with voluntary standards often enforced by local officials,
but the uneven skill set possessed by not only local officials but also
by OSHA inspectors suggests that training for inspectors and
enforcement agencies is also important.
Conclusion
Combustible dust hazards are real and well recognized. With the
extensive knowledge base and existing OSHA standards, it is not yet
clear that a combustible dust-specific standard would improve overall
safety performance with respect to this hazard or even employer safety
practices. If such a standard is to be issued, it must be done as part
of traditional rulemaking with full opportunity for those affected by
it to participate in its development and with all appropriate analyses
and reviews included.
______
Chairman Miller. Thank you.
Ms. Spencer?
STATEMENT OF AMY SPENCER, SENIOR CHEMICAL ENGINEER, NATIONAL
FIRE PROTECTION ASSOCIATION
Ms. Spencer. Thank you. Good morning, Chairman Miller.
I appreciate the opportunity to speak to you about the
Combustible Dust Explosion and Fire Prevention Act of 2008. My
voice is not very strong this morning. I am on the tail end of
a cold, but I hope my message will be strong.
I am Amy Beasley Spencer, a senior chemical engineer,
representing the National Fire Protection Association, NFPA,
and have worked at the association for 12 years. I serve as the
staff liaison to several NFPA technical committees responsible
for documents dealing specifically with hazard recognition and
control of dust hazard processes.
NFPA support the Combustible Dust Explosion and Fire
Prevention Act of 2008, and believe that OSHA should develop a
mandatory standard to address and mitigate dust hazards by
incorporating by reference the relevant NFPA codes and
standards.
Today, I will provide a brief background of NFPA, a
description of the relevant codes and standards that address
dust hazard processes, and conclude with a discussion on how I
believe these documents could provide a safe and effective
strategy for identifying and controlling processes that store,
handle or use combustible dust or other combustible particulate
solids.
NFPA is an international membership organization that
develops voluntary consensus codes and standards that are
adopted by state and local jurisdictions throughout the U.S.
and the rest of the world. The NFPA consensus process and the
periodic revisions of all documents ensure state-of-the-art
practices and safeguards are included.
NFPA has more than 250 committees made up of about 4,000
experts, who represent diverse interests such as enforcers,
users, consumers, manufacturers, designers, researchers,
insurance and labor.
These experts in their various fields serve as members of
the technical committee to write nearly 300 codes and
standards. In fact, one of the NFPA dust committees has
technical committee members from both OSHA and the Chemical
Safety Board, CSB.
Many NFPA codes and standards appear as mandatory
references cited throughout federal agency regulations,
including DHS, DOT, CMS, EPA and OSHA.
NFPA codes and standards provide a broad-based and
comprehensive set of requirements applicable to many hazards,
including combustible dust.
NFPA's principal dust document, ``NFPA 654--Standard for
the Prevention of Fires and Explosions From the Manufacturing,
Processing and Handling of Combustible Particulate Solids''--
covers the fundamentals of dust, protecting the dust hazard
processes. And its handling and conveying requirements are
often referenced in other dust documents.
We also have commodity-specific dust documents covering
coal, sulfur, combustible metals, wood dust facilities and
agricultural dust. In fact, the operations at sugar refineries,
such as Imperial Sugar, are within the scope of NFPA 61, our
agricultural dust standard.
I do not want to bore you with the long names and numerical
designations, but NFPA provides comprehensive coverage of dust
hazard in seven dust-related documents, originating as early as
1923.
The fundamental requirements and best practices found
within these documents have been highlighted in the Combustible
Dust Explosion and Fire Prevention Act of 2008, as well as the
CSB recommendations and industrial peer review journals. The
necessary requirements to prevent fires and explosions include
minimizing production and release of dust to the workplace, and
housekeeping procedures to minimize dust accumulation, thereby
minimizing the fuel source.
Written programs are required to manage the hazard.
Equipment maintenance is required to minimize ignition sources.
All our dust documents address the hazards of combustible dust
in three, simple steps:
First, hazard identification in terms of the type of dust
and its means for generation and in terms of ignition sources;
Secondly, hazard evaluation--a risk-based assessment of the
various processes and equipment used in dust hazard processes;
and
Third, hazard control measures including building
construction and location, explosion control and deflagration
venting, housekeeping, fire protection systems and management
of change.
In conclusion, if we are to safely and successfully
regulate industrial processes that involve dust, the challenge
for us all is to effectively disseminate the information, to
provide sufficient training and ensure consistent enforcement.
NFPA codes and standards adequately address how to mitigate or
eliminate hazards of combustible dust. We encourage any action
on your part that will more aggressively require compliance
with these codes and standards.
Moreover, we believe the best method to accomplish this
safety goal is for OSHA to develop a mandatory standard to
address and mitigate dust hazards by incorporating by reference
the relevant NFPA codes and standards. NFPA is committed to
assist where appropriate in these activities. And for all these
reasons, we support the Combustible Dust Explosion and Fire
Prevention Act of 2008.
Thank you for your attention and the opportunity to
testify.
[The statement of Ms. Spencer follows:]
Prepared Statement of Amy Beasley Spencer, Senior Chemical Engineer,
National Fire Protection Association
Good morning. Chairman Miller and committee members I appreciate
the opportunity to speak to you about The Combustible Dust Explosion
and Fire Prevention Act of 2008.
I am Amy Beasley Spencer, a Senior Chemical Engineer representing
the National Fire Protection Association (NFPA) and have worked at the
Association for 12 years. I serve as the Staff Liaison to several NFPA
Technical Committees responsible for documents dealing specifically
with hazard recognition and control of dust hazard processes.
NFPA supports The Combustible Dust Explosion and Fire Prevention
Act of 2008 and believes OSHA should develop a mandatory standard to
address and mitigate dust hazards by incorporating by reference the
relevant NFPA codes and standards.
Today I will provide a brief background of NFPA, a description of
the relevant codes and standards that address dust hazard processes,
and conclude with discussion on how I believe these documents could
provide a safe and effective strategy for identifying and controlling
processes that store, handle or use combustible dusts or other
combustible particulate solids.
NFPA is an international membership organization that develops
voluntary consensus codes and standards that are adopted by state and
local jurisdictions throughout the U.S. and the rest of the world. The
NFPA consensus process and the periodic revisions of all documents
ensure state-of-the-art practices and safeguards are included.
NFPA has more than 250 committees made up of about 4000 experts,
who represent diverse interests (such as enforcers, users, consumers,
manufacturers, designers, researchers, insurance and labor). These
experts in their various fields serve as members of the technical
committees to write nearly 300 codes and standards. In fact, one of the
NFPA dust committees has technical members from both OSHA and the
Chemical Safety Board (CSB).
Many NFPA codes and standards appear as mandatory references cited
throughout federal agency regulations, including DHS, DOT, CMS, EPA and
OSHA. NFPA codes and standards provide a broad-based and comprehensive
set of requirements applicable to many hazards, including combustible
dusts.
NFPA's principal dust document NFPA 654, Standard for the
Prevention of Fires and Explosions from the Manufacturing, Processing,
and Handling of Combustible Particulate Solids covers the fundamentals
of protecting dust hazard processes, and its handling and conveying
requirements are often referenced in other dust documents. We also have
commodity-specific dust documents covering coal, sulfur, combustible
metals, wood dust facilities and agricultural dust. In fact, the
operations at sugar refineries such as Imperial Sugar are within the
scope of NFPA 61, our agricultural dust standard. I don't want to bore
you with the long names and numerical designations, but NFPA provides
comprehensive coverage of dust hazards in 7 dust-related documents
originating as early as 1923.
The fundamental requirements and best practices found within these
documents have been highlighted in the Combustible Dust Explosion and
Fire Prevention Act of 2008, as well as the CSB recommendations and
industrial peer-reviewed journals. The necessary requirements to
prevent fires and explosions include minimizing production and release
of dust to the workplace, and housekeeping procedures to minimize dust
accumulation, thereby minimizing the fuel source. Written programs are
required to manage the hazard. Equipment maintenance is required to
minimize ignition sources. All our dust documents address the hazards
of combustible dusts in three simple steps--hazard identification (in
terms of the type of dust and its means for generation and in terms of
ignition sources), hazard evaluation (a risk based assessment of the
various processes and equipment used in dust hazard processes), and
hazard control (measures including building construction and location,
explosion control and deflagration venting, housekeeping, fire
protection systems and management of change).
In conclusion, if we are to safely and successfully regulate
industrial processes that involve dust, the challenge for us all is to
effectively disseminate the information, to provide sufficient training
and ensure consistent enforcement. NFPA codes and standards adequately
address how to mitigate or eliminate the hazards of combustible dust.
We encourage any action on your part that will more aggressively
require compliance with these codes and standards. Moreover, we believe
the best method to accomplish this safety goal is for OSHA to develop a
mandatory standard to address and mitigate dust hazards by
incorporating by reference the relevant NFPA codes and standards. NFPA
is committed to assist where appropriate in these activities and for
all these reasons; we support the Combustible Dust Explosion and Fire
Prevention Act of 2008.
Thank you for your attention and the opportunity to testify.
______
Chairman Miller. Thank you again.
Mr. Wright, you state in the beginning of your testimony
that these tragedies are, in fact, preventable. That is the
basis on which you, I assume, looked at this problem, that
prevention could be the result of both the investigation and
your recommendations.
Mr. Wright. Mr. Chairman, that is correct. We believe these
are preventable events.
I am encouraged that OSHA has sent out 30,000 letters,
advising and apprising people in various industries of the
potential hazards, and to raise their awareness. But this is
basic knowledge. It does not set the bar with respect to a
standard.
And that is why we still hold with our recommendation that
a formal standard should be adopted that everybody will abide
by. And that will also increase the awareness of inspectors, as
well as employers, with respect to the dust hazard.
Chairman Miller. And you consider that--or the board
considers that--critical to the prevention?
Mr. Wright. Well, yes, sir. That is why we made the
recommendation in our dust study.
Chairman Miller. Thank you.
Mr. Foulke, you do not seem to agree with that
recommendation at this point. Is that correct?
Mr. Foulke. No, Mr. Chairman. I would say that this is
something we are looking at all the recommendations. We do take
very seriously the recommendations of the Chemical Safety
Board.
As a matter of fact, if you look at our overall record with
respect to all the recommendations that the Chemical Safety
Board has made to us over the years, we have implemented over
73 percent of those recommendations in some form or another.
Chairman Miller. It is the ``some form or another'' that
worries me here, but go ahead.
Mr. Foulke. Well--and I would be happy to discuss the
individual ones, but what I would say is that we feel, first of
all, we took their recommendations and we started to work on a
number of those recommendations.
One of the recommendations was, as part of the combustible
dust study, was dealing with doing some type of special
emphasis program. We instituted our national emphasis program.
We actually had a local emphasis program in place for
combustible dust early on.
We then also had--one of their recommendations was to do
training. We have done training of over--as I indicated in my
testimony--over 1,000 of our personnel have been trained on the
combustible dust.
And also, the question about the--on the standard. We are--
as we take--as we get our information from our national
emphasis programs, as we go out and research, or do the
inspections to determine what caused or what is the items that
we find, the violations that we find for combustible dust, we
are going to look at that.
We believe that we have, as indicated, 17 different
standards that are applicable to combustible dust. We are going
to look at our results from our national emphasis program. And
if we determine that there are--we do not cover everything that
we need to cover, then we will consider rulemaking as a strong
option.
Chairman Miller. Mr. Wright, when you looked at that, the
totality of those regulations--the housekeeping standards, the
general duty standards and all that--your conclusion of the
Chemical Safety Board was what?
Mr. Wright. Well, Mr. Chairman, I believe that those are
good, applicable rules for cleanliness and keeping the
workplace clean. And oftentimes in these cases, the dust is
hidden, as was pointed out in the West case.
And I do take a little exception to the witness that said
that ceiling dust was sort of an unknown at that time. I
believe the NFPA at that time----
Chairman Miller. Specifically addresses that issue.
Mr. Wright [continuing]. Specifically--ceilings should be
tight from dust. And that is why our report read the way it
did.
I still think, and my colleagues agree, that we should have
a formal standard, so that employers and inspectors can keep
this on people's minds for the long run, and not just for a
short period of time with an emphasis program.
Chairman Miller. Well, you know, this--I think we are
drawing a difference that concerns me. Chemical Safety Board
has done what I think we would all consider a rather exhaustive
and comprehensive study of this problem. And they recommend
that we go to a standard for this purpose, not knit together a
series of standards from other codes and other reasons. And
that is their recommendation.
And in your testimony, Mr. Foulke, you stand that all on
its head. Instead of first, a recommendation that we have a
comprehensive standard, you say first, they recommend that OSHA
should have a national emphasis program. ``We initiated a
national emphasis program in 2004.''
``Second, the Safety Board recommended and offered training
throughout OSHA training institute. We recognize that
combustible dust--prevention. We have been offering this
training for several years.''
How many people have taken advantage of that?
Mr. Foulke. The training for our personnel?
Chairman Miller. Yes.
Mr. Foulke. We have trained--we have a 3.5-day----
Chairman Miller. No, no, no, no, no. The general training
program before you started the 3.5-day program.
Mr. Foulke. The general training? Well, all of our CSHOs,
when they do their initial training, receive combustible dust
training----
Chairman Miller. So, you are telling me that the people who
are now taking the 3.5-day training have all had the initial
training?
Mr. Foulke. Yes, Mr. Chairman.
Before any CSHO can go on, out on and conduct inspections,
he or she goes through a series of, a number of years of
training on different safety and health standards, and all our
procedures.
Chairman Miller. Okay. We will ask you to verify that.
Then, a page later, you get down to, ``Lastly, the Chemical
Safety Board recommended OSHA issue a combustible dust
standard.'' And then you tell us how if all your standards are
followed, the workplace would be safe.
The explosions suggest that that is not the case.
Mr. Foulke. Well, Mr. Chairman, I would say that the
testimony--most everybody here has indicated that combustible
dust explosions can be prevented. And the reason it can be
prevented is because, if you eliminate the dust, there cannot
be a combustible dust explosion.
And our position--and that is part of why we are doing the
national emphasis program, is to outreach to and inspect these
facilities where there are potential combustible hazards----
Chairman Miller. Mr. Sarvadi's testimony was people in the
facility, they had the information; they just did not act on
it.
Mr. Foulke. I am not sure----
Chairman Miller. But they did not have the information
about the ceiling, because it was not called to their
attention. But it would have been, had we taken--had you had
these other standards in place from the fire association.
Mr. Foulke. Well, Mr. Chairman, I would say this, that we
have been enforcing and citing employers for combustible dust
hazards under our housekeeping standard, a number of these
standards, since the early 1970s. So, we have been issuing
citations on this.
And the courts have--the Review Commission and the courts
have both determined that combustible dust is encompassed in
part of the housekeeping--as part of the housekeeping standard.
So, if the employers comply with the housekeeping
standards, there would be an elimination of the dust, and thus,
there could not--it would eliminate or at least mitigate the
hazard of having a combustible dust explosion.
Chairman Miller. I do not read the Safety Board's
recommendations and findings that they agree with that.
But Mr. Wright, is that accurate, that the housekeeping--if
they were in compliance with housekeeping--that that would----
Mr. Wright. Well, sir, I would just refer back to the OSHA
standard for grain dust. I mean, when that standard got into
place, 60 percent reduction in the number of explosions and
fires associated with grain dust.
I think that abiding by current regulation will certainly
help with the basic housecleaning requirements.
However, a robust standard that lays out specific
requirements for all employers to follow will ensure that
everybody follows the same sheet of music.
The particulars that are in place today are optional
recommendations to folks. Mr. Foulke's letter itself calls
attention to some of the standards and some of the procedures
that are in place at his Web site, and asks people to make sure
that they are aware of those, and that they advise their
employees and they raise awareness.
And we appreciate that, because any raising in awareness
with respect to dust explosion knowledge is helpful. But it is
not going to prevent dust explosions from happening.
If the special emphasis program that has been in place
since 2004 was really effective. We would not have seen half of
the explosions we have seen in the last few years. So, I think
it is ineffective, and I think we need to have a current dust
explosion comprehensive standard to address those.
Chairman Miller. Thank you.
Mr. McKeon?
Mr. McKeon. Thank you, Mr. Chairman.
Thank you, Mr. Chairman.
Mr. Sarvadi, you suggested without appropriate
grandfathering provisions, the bill will require changes to
every building constructed over the last century. Does OSHA
have that authority?
Mr. Sarvadi. They do not at the present time, Mr. McKeon.
I think one of the fallacies of the suggestion that we
should just adopt the NFPA standards wholesale by reference is
that the present system that we have does not permit that to be
updated the way the NFPA standards would be updated.
All of the NFPA standards have provisions in them that talk
about what happens to existing facilities. In the case of the
654, my written testimony included some information about those
look-back provisions and when employers and building owners are
required to upgrade their facilities.
So, even if we are successful in adopting the standard, it
is going to take an awful lot of time and education to get
people to understand what their obligations are, to understand
how those standards apply to their facilities, and so on. And
that is why I have emphasized in my testimony, and I repeated
verbally here, how important it is for us to start thinking
about how to get the information in the hands of people in a
meaningful way.
Having the data, having the standards out there is not the
same thing as having people understand exactly how to apply
those standards.
And I think one of the--the one thing that is missing, I
think, from the OSHA emphasis program is working with as many
other organizations as they can find to try to make sure that
people understand how to apply these standards. OSHA has
cooperative programs with a number of different trade
associations, many of whom represent industries that have
combustible dust hazards in them.
We could much more quickly get many more people to
understand these hazards if we had a program where we would go
out and use those communication channels to make them aware of
the NFPA standards, of the application of the housekeeping
standard that OSHA has, and other standards, so that they would
know how to prevent these events from occurring.
Yes, they are preventable, but it takes a lot more than
just putting paper together in Washington to make it effective.
Mr. McKeon. I have found this is a pretty big country. And
when you pass a law here, by the time you get it fully
implemented, understood, enforced, you know, it is time to
write another law. And that is a problem that we deal with on
everything we do here.
Can you explain for the committee how imposing standards
without notice and comment from affected parties can actually
delay implementation of safety practices, due to the likelihood
of litigation?
Mr. Sarvadi. Yes, Mr. McKeon, I can help answer that
question.
I think the first point to be made is that the NFPA
standards do have ambiguous provisions in them. So, simply
adopting them wholesale leaves open the question of whether or
not a particular standard applies in a particular location;
that is, a particular provision applies to a particular
location.
If you look closely at this standard, what you will find is
two different sections. And I am talking specifically about
654.
The first couple of pages of 654 talk about the
programmatic kinds of things that the bill contemplates. Behind
that are a series of sections that talk about engineering
standards or building design standards, and other kinds of
things like that, that go directly toward the kinds of changes
that need to be adopted and used in order to implement the 654
requirement.
Some of those are mandatory, and some of those are to be
used when the person--in the words of the standard--the
authority having jurisdiction decides that they are
appropriate.
So, one of the things that you end up with ambiguous
standards--especially when they are mandatory--is that people
disagree on how they apply. And you end up, in that case, when
you have a financial penalty like an OSHA fine or citation, you
end up with people trying to decide whether or not it is
appropriate to comply with that provision and whether or not it
applies in their particular circumstance.
The standards--the voluntary standards recognize that
distinction. What the hearing process does, when OSHA holds its
hearings in Washington to review proposed standards, is it
allows the agency to hear from people who have to live with
these provisions on the ground, how these ambiguities are going
to affect them, how they are going to be interpreted, what
kinds of an impact the different changes are that are proposed
are going to have--and equally important, how long it is going
to take to implement those changes.
So, I think if we skip that step, if we do not have the
opportunity to hear from people who have to live with these
things on the ground in their daily lives, we are going to end
up with a standard that is not going to achieve the objectives
that we all have, which is to have a safer workplace for
everybody.
Mr. McKeon. Thank you very much. Mr. Chairman, my time has
expired.
I apologize for being late and missing my opening
statement. If I could have it included in the record at the
appropriate----
Chairman Miller. Without objection.
Mr. McKeon. Thank you.
[The statement of Mr. McKeon follows:]
Prepared Statement of Hon. Howard P. ``Buck'' McKeon, Senior
Republican, Committee on Education and Labor
I thank the Chairman for yielding. We're here this morning to
examine the Combustible Dust Explosion and Fire Prevention Act, a bill
introduced in response to the recent accident at the Imperial Sugar
Company refinery in Port Wentworth, Georgia. We have with us two
distinguished panels of witnesses, beginning with two members from the
state of Georgia. I want to thank each of you for being here.
Each of us is saddened by the loss of life and the grave injuries
suffered at the Imperial refinery. It is natural to wish we could have
prevented this and every accident, and I understand the desire to
introduce legislation that seeks to do exactly that. We are here today
to examine the specifics of that legislation, and to determine whether
it provides the most reasonable and effective path to preventing future
workplace accidents.
I look forward to hearing from our witnesses a more detailed
analysis of the bill and its likely impact. However, to spur that
discussion I would like to raise a few key questions.
First, I believe we need to look at the specific regulatory process
called for in H.R. 5522. We have in place longstanding laws and
procedures governing the rulemaking process. These laws ensure not only
that regulation is serious, legitimate, and credible, but also that all
stakeholders are able to contribute valuable input to the rulemaking
process. By short-circuiting the regulatory timeline, do we risk the
integrity and effectiveness of the final rule? Do we sacrifice safety
by placing speed over substance?
The second area I hope we will consider is whether a one-size-fits-
all approach will hamper safety efforts within individual industries.
As I understand it, this bill calls for a final standard addressing all
forms of combustible dust. However, it is also my understanding that
dust hazards vary greatly from industry to industry. Do we lose
effectiveness by demanding an immediate, yet general standard for all
dust as opposed to looking at the hazards faced in different
industries?
Finally, I hope we will bear in mind the importance of
scientifically-based evidence when establishing workplace safety
standards. Try as we might, our wisdom in Congress can never replace
that of knowledgeable experts who rely on sound scientific study to
develop these standards. I fear that a superficial regulatory process
would not be based on a sufficiently rigorous scientific framework. Is
there a danger that this bill limits OSHA's ability to regulate with
the most scientifically-based information?
The tragedy at the Imperial Sugar refinery underscores the need for
continued workplace safety vigilance. OSHA must take its responsibility
to regulate seriously. And we must take seriously the ramifications of
creating a new regulatory framework on this or any other issue where we
feel a desire to override regulation with legislation.
Once again, I want to thank our witnesses for being here. I want to
thank Chairman Miller for convening this hearing, which I hope is the
beginning of a thoughtful and inclusive process that takes into
consideration the questions I have posed today. With that, I yield
back.
______
Chairman Miller. Ms. McCarthy?
Mrs. McCarthy. Thank you, Mr. Chairman. And thank you,
everybody, for your testimony.
Just going over a number of the testimonies--and I know we
have been going back and forth with votes and everything--when
you talk about the dust, and you talk about, Mr. Foulke, about
only \1/32\ inch deep of combustible dust covering an area of
at least 5 percent of the total area of a room is enough to
cause a catastrophe dust explosion, and when you were
explaining that on the second part where, you know, general
cleaning should take care of that particular problem.
I know that when I dust my house, the most dust is up in my
ceiling fan, which is a little difficult to get to at times,
but that is where we go for it. Because obviously, every time I
put the fan on, and the dust is going all over the place. But
it still builds up.
So, I am trying to think of, when you go for the
inspections, or even talking to the employers, how do you tell
them to clean up there? Because reading the rules, it does not
sound--you know, keep the hallways clean, keep the floors
clean. I did not see anything that mentioned--is it supposed to
be just known that you should clean the ceilings?
Mr. Foulke. Yes, madam.
They have a--our housekeeping standard is a performance
standard, as are a lot of our standards. So, it allows the
employers the flexibility to determine what their hazards--what
is the hazard that they have to address there, and how is the
best way to address that hazard.
So, with respect to rafters and the accumulation of dust on
rafters, under the housekeeping standard, it is our position
that they would be required to make sure that dust does not
accumulate in those areas.
Mrs. McCarthy. So, if the employers know that they are
supposed to clean the rafters and the ceilings, how did so much
dust--who is inspecting them? Who is making sure that there is
not enough combustible dust up there?
Mr. Foulke. Well, as part of our national emphasis program,
we are going into facilities that we have identified as having
a potential for combustible dust hazards. And that would be
part of the inspection process, to look into those areas.
Mrs. McCarthy. Mr. Wright, do you have any answers to that?
Mr. Wright. Well, I wish I did, other than my firm
recommendation that we have a comprehensive dust standard that
will address those areas.
And I might add that, in addition to simple cleanup, one
can not go into a confined space with an air hose and just push
dust around, particularly if there are live ignition sources
available, because in an attempt to clean up the area, the
person may in fact create the disaster that he is trying to
avoid.
And we would think that a comprehensive dust standard would
help advise people on what the proper and safe way to clean up
these facilities is, rather than just relying on a good
housekeeping standard, as it were.
Mrs. McCarthy. But one of the things--I know that we have a
grain handling standard. And I am just again thinking of
commonsense things that happen around my house. I feed the
birds in the winter.
So, when I open that bag and I am pouring it into my
plastic container, a whole bunch of dust comes up. And I am
thinking, wow, I am breathing this, you know. So now I only do
it outside.
So, if you are in a plant and you are working with all of
these chemicals, whether it is grain, whether it is sugar, you
know, flour--gosh, you know, I am not knowledgeable in those
areas, but that is an awful lot of stuff that is going up in
the air and people's--in the lungs and everything else like
that.
So, with some of the incidents that we have seen, and
unfortunately with too many people being killed, what is the
problem of trying to get almost all the different kind of dusts
under one kind of program, so that particular manufacturer
could actually follow those rules?
Mr. Foulke. I am assuming that is addressed to me. I am
sorry.
Well, I would say that, what we do is we already--well, as
part of our inspection process and the rules that we have that
are mandatory, all the 17 standards that I noted in my
testimony that we believe are applicable to combustible dust,
are mandatory. Employers are required to follow those.
To answer part of your question, too, is about the dust and
not necessarily just all housekeeping. We also have a standard
on ventilation, which will require employers to make sure that
they are venting out the dust away from the--outside the
facility.
Also, part of this, as part of the housekeeping, may mean
that the employer would be required to ensure engineering
controls were in place, so that the dust would not even escape
the process itself, and so, thus have hoods on top of the
drums, or whatever, so that the dust would be captured and
would not get out into the workplace itself.
So, there is a series of things that actually would be
applicable. And then, we think that we have all these in place.
Mrs. McCarthy. But obviously, that did not happen, because
the plant did explode.
Ms. Spencer, do you have anything to add to the
conversation that we have been hearing?
Ms. Spencer. Yes, I do.
First, NFPA would like to commend OSHA for all the work
that they have done on the dust hazards, as well as the CSB.
Mr. Foulke mentioned that the housekeeping standard is
performance based. And that is correct, and I do agree with
that. However, looking through the OSHA regulations, there are
three or four places with just a few very general, non-specific
type requirements, such as, the floor of every work room shall
be maintained in a clean and, so far as possible, a dry
condition.
NFPA standards go so far beyond that, where it really
discusses the different types of hazards that can occur in a
facility. And as Mr. Wright pointed out, just telling them to
do housekeeping is not enough, because, in some cases,
housekeeping can actually cause the explosion if not done
properly.
NFPA codes and standards address exactly how to do the
cleanup properly--like, for instance, with a special hazard
such as metals. Before you can even begin to clean up, NFPA 484
requires a preliminary cleanup using non-sparking scoops and
soft-bristled brushes.
So, you can go through a plant and you can see footsteps,
and you know that there is a dust hazard. So, that means that
there needs to be more housekeeping.
Okay, so you clean it up 24 hours a day. There is still
dust there. That means there is a bigger problem in the system
that needs to be addressed through equipment, dust collection
and other types of requirements to protect the workers.
Mrs. McCarthy. If I may, Mr. Chairman, just to Mr. Foulke.
Has OSHA, with the budgetary pullbacks over the last
several years, do you have enough inspectors to really keep up
with everything that is going on in all the different plants
that we have across this country?
Mr. Foulke. You know, what I would say to that, we have a
very effective inspection program. We target--we have a
specific targeting program for our inspections. We have what we
call our site-specific targeting, where we identify those
employers that have the highest injury and illness rates, and
those are the ones that are on a--for a comprehensive, wall-to-
wall inspection.
We also have different programs where our national emphasis
programs, which we have here in combustible dust, and we have a
whole series of national emphasis programs, where we target
those particular hazards that are most--that we find the most--
causing the greatest injury or illnesses to employees.
Mrs. McCarthy. But that is not actually answering my
question.
I am asking, do you feel that you have enough inspectors to
do the work that needs to be done around the country?
Mr. Foulke. I would say that we are obviously doing the job
we need to be doing, because if you look today, the most recent
data that we have, we had the lowest injury, illness and
fatality rates ever.
So, I think the system that we have in place, we are doing
the job, and we are getting to the places we need to get to.
Mrs. McCarthy. Thank you, Mr. Chairman. I yield back my
time.
Chairman Miller. Thank you.
Mr. Davis?
Mr. Davis of Tennessee. Thank you, Mr. Chairman.
And I would like to thank the witnesses. Thank you for your
testimony. This is a very important hearing dealing with the
health and safety, and even lives, of American workers. Thank
you for being here.
I would like to start with Mr. Sarvadi, please.
I understand you are an industrial hygienist with
experience with different types of dust. Can you estimate how
many different types of dust exist in the workplace today?
Mr. Sarvadi. No, because they are probably innumerable.
The one thing I wanted to make a point about is this, the
notion of combustible dust, when we talk about this, we have a
definition that NFPA has come up with that is very broad. Any
dust--expect for what we call mineral dust, things like rock
and sand and that sort of thing--can be combustible under the
right circumstances. So, it is a very broad subject area.
Mr. Foulke mentioned that they sent out 30,000 letters. I
have heard numbers like 80,000 workplaces around the country.
If you ask me, I would say the number of workplaces that might
have in some part of their operation a combustible dust
potential, is on the order of maybe several million.
It is a very, very common problem, if you are using certain
kinds of things and doing certain kinds of things.
And I want to clarify one thing, if I may, Mr. Davis, about
the comment that Mr. Wright made about West Pharmaceutical. The
problem at West was that we had a chemical substance in a form
that you would not expect to present a chemical--a combustible
dust hazard.
It was a liquid slurry of polyethylene. And if we are to
believe what the report says about that, the polyethylene that
was in this slurry was used in a very thin quantity on the
parts in the facility. Those parts were dried.
And somehow, that small quantity was carried off of the
parts, up into the ceiling, and deposited in concentrations
that were not visible to the naked eye. In other words, as Ms.
McCarthy suggested earlier, when we open a bag we can see the
dust. Here you were opening a container that has a liquid in
it.
And when I said I was humbled by the experience in reading
the report, what I meant was, I would never have thought that
using that slurry in that circumstance would have produced
enough dust, even over the 10-year period between 1996 and when
the explosion occurred--probably not exactly 10 years, but
anyway, over that period of time--that there would have been an
accumulation sufficient to cause the devastation that occurred
there.
Obviously, something happened. I do not know exactly what
it was.
But what I am telling you is, even with my 35 years of
experience having looked at these problems over the years,
looking at that particular process, I would not have said
combustible dust might be a problem. That is what I mean when I
say it is hard to know where combustible dust is an issue.
Yes, there are--there is information. Many material safety
data sheets talk about combustible dust being a potential
hazard. That is the starting place. The process that has to
occur subsequent to that involves everybody in the facility.
And in regard to the question Ms. McCarthy asked about
housekeeping, when I was working with companies that have--and
still work with companies that have--combustible dust issues,
you have to have a housekeeping program that involves using
vacuum cleaners, long-handled brooms, all kinds of things, even
to the extent of on a periodic basis, either semiannually or
annually, going through and cleaning those flat surfaces.
When I was a young industrial hygienist, one of the old,
gray-haired gray beards in the business advised me, when you
first go into a plant, look and see what the housekeeping is
like. The housekeeping will tell you how much pride the people
in that facility have in their operation. And if they keep a
clean plant, the chances are they are going to be paying
attention to the small things.
So, I think the problem that we have here is not a question
of standards. We have lots of standards. The standards--even
the voluntary standards like the NFPA standards--can be
enforced by OSHA under the general duty clause. And that by no
means is a voluntary requirement.
And so, it is not a question of having standards and
knowing what to do. It is a question of getting the information
in the hands of the right people.
Mr. Davis of Tennessee. I would like to follow up. And I
think I understand. You say there are different types of dust.
Then do those different types of dust have different
combustible properties?
Mr. Sarvadi. Absolutely. In fact, in the NFPA standard, we
have heard the reference to the \1/32\nd of an inch of dust.
The NFPA standard sets that as the minimum level for highly
explosive dust.
There is actually a formula in the standard that talks
about making adjustments to that level, depending on what is
called the bulk density of the dust. We could spend hours
talking about these kinds of technical details.
The point is, not every combustible dust is the same. Not
every combustible dust presents the same degree of hazard. And
that is why, in the context of the NFPA standards, the
authority having jurisdiction and the people who implement
these standards have to make judgments--and we are introducing
the human element again here--they are making judgments,
fallible human judgments, about how to apply those standards.
That is a different process than what we have been talking
about in the enforcement context.
Mr. Davis of Tennessee. Thank you. My time has expired, and
I yield back.
Chairman Miller. Mr. Sarbanes?
Mr. Sarbanes. Thank you, Mr. Chairman.
I am listening to this discussion of the housekeeping
standards and whether they are sufficient or not sufficient.
And your description of what happened with that liquid
container seems to me to be an argument that housekeeping
standards, given what you said, Ms. Spencer, are not always
going to get to the problem, because you need more specific
kinds of oversight to determine whether the workplace is being
maintained in a way that is safe and is going to prevent these
accidents.
I wanted to ask you, Mr. Foulke. Right now there is a
comprehensible, or comprehensive--hopefully it is
comprehensible, too--but grain dust standard in place, right,
that OSHA administers within----
Mr. Foulke. We do have a grain dust standard. That is
correct.
Mr. Sarbanes. So, if there were not one in place, would you
be arguing that the housekeeping standards, and other things
that your agency engages in, are sufficient, that you would not
need to have a grain dust standard in place today?
Just assume that it had not been done in 1987, and we were
having a discussion today about the grain dust standard. Would
you be taking the same position on that that you are taking
with respect to the combustible dust standard?
Mr. Foulke. Well, Mr. Sarbanes, we have--if you look at the
grain dust standard, it actually does have--focuses on
housekeeping, ventilation, the standards that we have there in
place. And so, if there was not--and prior to the
implementation of the grain dust standard, employers in those
industries were being cited under our mandatory standards for
housekeeping and ventilation, and so forth.
And there is a grain dust standard. But unfortunately,
there are still explosions in grain dust facilities, and there
are still fatalities in grain dust facilities. So----
Mr. Sarbanes. Well, what does that mean?
Mr. Foulke. Well----
Mr. Sarbanes. I mean, there is a lot less of them than
there used to be, right, before the standard was put in place?
From what I----
Mr. Foulke. I think the number of fatalities have reduced.
And if you look at, like I mentioned earlier, we actually have
had the number of fatalities across the board, we have been
able to reduce those across the board in the country. We are at
our lowest rate in fatalities, and also the lowest rate of
injuries and illnesses in the country as ever experienced right
now.
Mr. Sarbanes. See, I come--and I assume that light is not
correct.
Chairman Miller. It absolutely is not correct.
Mr. Sarbanes. Okay. I come not knowing a lot about the
subject ahead of time, so I have been listening very carefully.
And I just--it seems like you are hemmed in by a bunch of
things.
One is that you have this precedent of the grain dust
standard, which seems to have made a significant difference by
raising awareness significantly on it. You have got the
Chemical Safety Board. You have got the NFPA, that are urging
that there be a specific standard with respect to combustible
dust.
And you yourself keep saying that, well, you know, we are
doing all the things that--what I am hearing you say is, we are
kind of doing all the things that we would need to do if there
was, in fact, a comprehensive combustible dust standard in
place. We are doing those things now.
So, I do not understand where the resistance is to
establishing this standard that is being urged left, right and
center, it seems to me, by everybody around you.
So, if you could just explain that a little bit better for
us.
Mr. Foulke. Mr. Sarbanes, I would say, as I mentioned
earlier in my testimony, we are--we have instituted this
national emphasis program, and we are gathering information
from that to determine whether or not, are the standards that
we have in place now sufficient to meet the hazards that we are
dealing with.
And we have not ruled out the possibility of doing
rulemaking. So, we are looking. And that is an option for us
still.
But we are just trying to collect the data through the
national emphasis program, where we are looking at all the--as
many sites as we can, and inspecting those sites to determine,
do we have a--do our standards actually cover what we need to
cover? Or is there some holes in the coverage that we need to
address, and would a comprehensive standard address that.
And I would note, too, about the grain dust standard. The
grain dust standard covers a lot of other things. And part of
what--and actually, one of the focus points of the grain dust
standard was engulfment, where we were having significant
problems, where people were in grain and in grain silos, and
were being engulfed, and resulting in fatalities. There is that
part. So, there is a series of things that we actually look at
in the grain----
Mr. Sarbanes. Well, I think it is great that the grain dust
standard is there. I just think that it creates a pretty
powerful precedent to address this kind of situation in a
similar way.
And I allow that not everything that happens in the past is
a precedent that should be applied broadly. But it seems to me
that there is sufficient evidence and statements by those who
know this area best, that a comprehensive standard here would
make a lot of sense.
And one of the things I worry about is the negative
implication of it not being there. In other words, if there is
a standard that exists with respect to other things, and yet
there is continued resistance--now, you say your mind is open,
and I appreciate that--but if there is a perception of
continued resistance to establishing similar kinds of standards
in this area, then people are going to draw from that. You
know, they are going to infer, maybe, that the attention, the
awareness, whatever it is, is not as heightened as it ought to
be.
And so, there is a value in setting these standards,
actually, that goes beyond--that is more than the sum of the
parts. I mean, you are kind of talking about, you have got all
the parts in place to do the kind of oversight that needs to
happen to protect people.
But what you get by establishing a comprehensive standard
is you ratchet it up. You ratchet the awareness of it up. You
heighten awareness, so that, as Ms. Spencer was saying, it is
not sufficient in people's minds to--people do not get
complacent just because they pushed a broom or they vacuum
every 12 hours, because I understand there is sort of a higher
level of scrutiny expectation that is in place.
So, Mr. Wright, maybe you could speak to that, that idea of
heightened awareness being part of what we are trying to
achieve here with a comprehensive standard.
Mr. Wright. Yes, sir.
I think, if you do a comparison with the grain dust
standard, as I testified to, it has specific schedules. Written
programs are required. You do not use compressed air
necessarily to clean up dust. You remove anything that is
greater than an eighth of an inch thick immediately. And you ID
priority areas that you are going to work in.
This is all absent from the general housekeeping standard
with respect to combustible dust. And that was one reason that
we recommended that a comprehensive standard be in place.
And as you pointed out, a comprehensive dust standard will
keep this awareness alive forever, as opposed to a finite point
in time that an emphasis program may, in fact, people become
complacent with and forget about, because they are lucky and
they have not had any fatalities or incidents.
It is not unlike what I worked with for most of my adult
life--explosives. You know, people do die with explosives,
because they do get complacent with what they are handling. The
same can be true with dust.
Mr. Sarbanes. Thank you. My time is finished.
I would just note that, with an emphasis program also,
something else may come along that requires new emphasis, pulls
the attention away from this other thing. And if you have it in
place as something you have to continually look at, that also
drives the resource question that Congresswoman McCarthy asked,
because then you might decide you do not have enough resources
to do the job you need to do to cover the permanent standard,
or comprehensive standards in place and, to do the other
emphasis things that you need to do.
Thank you, Mr. Chairman.
Chairman Miller. Thank you.
Mr. Payne?
Mr. Payne. Thank you very much. Thank you, Mr. Chairman,
for calling this very important hearing.
You know, it seemed that to me, primarily to the OSHA
assistant secretary, that we would see that the prevention of
deaths and injuries would be decreased as we move forward,
because we had new techniques and we have a knowledge of how to
try to prevent things. But it seems that we still are having
unnecessary deaths.
You know we had the hearing about synthetics, lingerie and
the deaths that were occurring in that industry. And lo and
behold, shortly after that hearing, we had two deaths right in
my district at the Northeast Linen Company in Linden, New
Jersey, where two employees, improperly trained, improperly
prepared to do that, suffocated to death. This is like a week
or two after we had the hearing, talking about why can't we
have better standards. Ms. Woolsey and Mr. Wilson and other
members came to the hearing in my district.
And so, I do have a concern that we are really not stepping
up to the plate, even while we--as a matter of fact, while we
were having a hearing in Linden that day, two--a man from my
district fell from cleaning windows over in New York. One
actually lived, to be honest.
But Mr. Foulke, at our last hearing when you testified,
when you were here last testifying at a hearing on OSHA's
failure to issue standards, I expressed my concern at that
hearing with OSHA's promotion of voluntary programs.
We hear a lot about voluntary programs. Companies want to
do the right thing. And therefore, we should leave it up to
them. Government that governs least is best. You know, keep the
government out of the workforce. That is the philosophy, it
seems.
But I asked you about the alliances, and the alliances over
mandatory standards. Now, it seems, with your new combustible
dust Web site, and your refusal to work on a dust standard,
that you are following the same path as we heard about the
voluntary standards that you talked about before in that
industry.
At that hearing, I asked you specifically then about the
Reactives Alliance, and whether you thought that voluntary
efforts like alliances, and specifically the Reactives
Alliances, were more effective than OSHA standards. At that
hearing several months ago, you replied, ``Yes,'' because
``OSHA is able to outreach to more employers,'' and thus cover
so many more employees, by quickly developing and working
together to develop these guidance documents, these best
practices, these training modules.
Now, at this time, we have four people dead from a
preventable reactives explosion in Jacksonville. And according
to OSHA's own records, the only thing that Reactives Alliance
did was to put up a Web site and set up some booths at a
conference--and actually trained only 36 people. And the
alliance was discontinued last year.
Now, it seems to me that, if you had changed the process
safety management standard as the Chemical Safety Board
recommended, thousands of workers would have been trained by
now, these standards would have been mandatory, and it is
possible that these four workers in Jacksonville, who are now
dead, may have been alive.
And so, and I fear that the way you are heading with
combustible dust is the same as we have had in the past.
So, my question. So, how can you still tell me that
Reactives Alliance was more effective than revising the process
safety management standards would have been? And can you tell
me why a standard that everyone must comply with won't be more
effective and prevent reactive chemicals or dust explosions?
You know, we still seem to have this non-mandatory, let-
everyone-do-the-right-thing thing, and it is not working. I
would just like to get a clarification, because I asked this
question specifically and got that answer that I quoted from
the testimony.
Mr. Foulke. Well, Mr. Payne, first of all, I would really--
I do believe strongly in our alliance program, because I do
believe that it allows us to outreach to so many more
employers.
But with respect to reactives, I would first mention the
fact that we do have a number of OSHA standards, including
process safety management, hazard communication, flammability
and combustible liquids, fire protection, that are already on
the books that are applicable to reactive chemicals. So, we do
have standards that are in place on that. So, we are there.
With respect to where we are, once again, we are looking
at--we have not ruled out doing this, a standard of this. And
we are actually working with the Process Safety Alliance, which
is an alliance we put together with the Center for Chemical
Process Safety, the American Chemical Society, American
Chemistry Society, the Petroleum Institute, the petrochemical,
the Chlorine Institute, EPA. We brought all this expertise
together to focus on reactives.
We are looking at how we can go about that, and we are
trying to be effective on this particular issue.
Mr. Payne. But you still opposed the mandatory. I mean, you
said that you still think that it is going to work out all
right.
How many deaths does it take to see that it is not working?
Mr. Foulke. Well, I would say, we are still looking at the
issue of a possible standard. We have not ruled it out. I
cannot--I would not say--I would be--we are looking at the
possibility of working with a standard.
And the fact that we put this Process Safety Alliance
together will help us determine, first of all, how these
coverage with respect to reactives, because that is a question
in and of itself, as to what--how should be the scope of a
reactive and the definition of reactives.
Mr. Payne. Well, my time has expired. But what bothers me
with this administration is, whether it is the beef that they
said was unfit for human consumption, but then OSHA concluded
that it was not injurious to your health--something I cannot
figure out, but that was last week's hearing.
I cannot figure out how they said we had a great recall of
hundreds of millions of tons of beef, and found out that 80
percent had been consumed. Well, why do you talk about a
recall? How can you recall something that is already consumed?
It is not a recall--that is eaten.
But once again, the lack of enforcement--I had to ask the
witness, did you seem the same video I saw about these cows
that could not walk to slaughter, so they put them on lift
trucks and rolled them in and dropped them in, because you are
supposed to be able to walk to your slaughterhouse. And there
just seemed to be the fiddling while Rome is burning.
We have to start protecting. American people deserve
better. They deserve better for their food. They deserve better
for their health. And they deserve better for working
conditions for working men and women.
I think my time has expired. Thank you.
Chairman Miller. Thank you.
You know, Mr. Foulke, I guess what haunts me as I listen to
this--to many of your answers, is the words of Ms. Miser when
she said that, when she saw the work of the Chemical Safety
Board, the work product there and the recommendations, she
thought at last something would finally happen that would
protect other workers in these dust-related industries from the
horror that her brother and her family went through.
But I must tell you, I just see such an incredible lack of
urgency on your part about the role of your agency to protect
workers, that it is astounding.
You mentioned that you are now engaged in the process of
accident mitigation with the chemical industry and the
refineries. And you rattled off a whole list of people there.
That is after one of the worst accidents and one of the
most scalding reports by the Chemical Safety Board that we have
seen in the history of this program. And the negligence and the
conspiracy to avoid spending money on that refinery reached all
the way in to the board room of British Petroleum, and caused
the exit of a number of those officials--and a huge fine.
We are hell on wheels after the accident. But nobody was
inspecting that facility to see the buildup of the process
problems that led to that accident prior to that accident.
You keep talking about how you are citing people on
housekeeping, and most of it is after an accident. You come in
after the fact and you say, you violated housekeeping.
And yet, as we have seen in the exchange here between the
members and you, it is quite unclear exactly what housekeeping
means, and whether housekeeping itself would result in a
diminution of the accidents. We have had the housekeeping
standards, and we keep the accidents going.
I guess one of the nice things about seniority around here
is you are around long enough to see these arguments come
around. I was here when grain elevators were popping up like
fireworks. And we went through all of these same arguments. And
we went through hidden places of dust, because some of these
grain elevators had false ceilings in them, depending upon
their capacity and their design. And the housekeeping made them
more dangerous.
I went through this in terms of occupational health on dust
standards in the--the cotton dust standards, and their
housekeeping, again. Well, we just--we pick it up after every
shift. We blow it around. And we found out that that took
engineering.
In fact, many in that industry now say that that
engineering changed the productivity of those plants that
engaged in it, and kept them competitive for many more years
against foreign competition than if they had not done it,
because they had to invest in a new generation of machines that
made them far more effective.
And yet, against that evidence, against a 60 percent
reduction in the explosions on grain, you want to suggest that
you would like to keep the housekeeping standards that we had
before the grain explosions, that this industry has not quite
come to it yet.
And yet, we see a process here. I mean, we are trying to be
user-friendly here. We see a process. Mr. Sarvadi makes the
best case for the fire association standards. He says, they
have taken into account--in answering Mr. Davis' question--they
recognize there are different kinds of data. They recognize
there is a different kind of specific gravities, or whatever,
densities that he pointed out.
This is what they do. They arrive at these consensus
standards across a broad range of hazards within particular
industries, and in some cases they are adopted on a mandatory
basis, some cases, apparently on a voluntary basis. Some places
they are incorporated into existing codes. And it is an
evolutionary, ongoing process.
You are here clinging to what you have done, and it has
turned out to be incredibly ineffective in terms of getting the
kinds of results that workers in this country are entitled to,
the kind of results that we saw in cotton dust standards, that
we saw in grain standards.
But I went to those hearings at those elevators when I was
a new member of Congress. I listened to those workers and to
their families, and I listened to those owners. But in fact,
the grain standard has turned out to be the right thing to do.
There comes a time--you know, you are suggesting that if a
person can navigate the Web site, if they get the advantage of
the emphasis program, if they get the letter and they
understand it, if they know that somehow that the grain
standards may also apply to their business, even though they
are not in the grain business, that they can knit together a
system of safety.
I think Ms. Miser's brother is entitled to more than that.
And I think the workers in Savannah were entitled to more than
that.
And I appreciate that this was a liquid that we did not
understand, except we understood the purpose of its application
was to create dust between the layers in the products and
rubber. But housekeeping would not take care of that, because
the dust migrated. It was a spotless facility. It just did not
anticipate that.
So, we can continue to do this very convoluted, disjointed
system and tell the workers to take the hindmost. That is just
not going to be acceptable to this committee, and it is not
going to be acceptable to the Congress.
We are trying to do this at a threshold that works for
employers, that works for regulators, and that allows a process
to go forward to have the continuous improvement.
But you want to cling to the past, you are welcome to it.
But it has turned out to be fatal for the American workers. I
just do not understand it. I just do not understand it.
You are certainly free to reply, because you obviously do
not agree with me.
Mr. Foulke. Well, Chairman Miller, I would say once again,
as I mentioned earlier, we have been inspecting for combustible
dust hazards. We have been doing this since the 1970s. So, it
is not that--we are not a Johnny-come-lately on this issue. We
have been working on this issue. We have been issuing citations
to employers.
And once again, the number of inspections that we are
doing, we have been continually increasing the number of
inspections over the past number of years. We are getting out
to those facilities. We are targeting the ones that our
emphasis programs are targeting. And----
Chairman Miller. Again, let me explain something. When you
answered Ms. McCarthy, you talked about injuries and falls and
those kinds of things.
That was exactly what your attention was directed to with
respect to British Petroleum. That everybody was walking around
saying how many worker safety days did they have and nobody
fell and broke their leg, sprained their ankle or lost a day of
work. And meanwhile, this refinery was getting ready for one of
the great explosions in our industrial history.
Mr. Foulke. Well, I would, with respect to----
Chairman Miller. Oh, I said, that is how you said you
selected your intensity of your inspections.
Mr. Foulke. That is----
Chairman Miller. Those industries where you have the most
slips and falls.
Mr. Foulke. That is part of our site-specific targeting.
That is correct, Mr. Chairman.
But we also have our local emphasis programs and our
national emphasis programs, which target those areas where we
find--particularly our local emphasis programs focus on those
local issues where they are, where they are seeing that they
are having the most serious safety and health issues.
And so, they target them on a local level. And then on the
national level, we are looking at where we have a lot of--where
we are seeing on the national basis, safety and health issues,
to address those.
And I think, once again, the statistics, the injury and
illness data shows that we have the lowest rates that we have
ever had. We have had the lowest number of fatalities we have
ever had.
So, I believe we are at least moving in the right
direction. And as I indicated here on this particular issue, we
are looking to gather the data from our national emphasis
program to determine whether or not we need to go to
rulemaking.
Chairman Miller. Well, Imperial Sugar was not on your
inspection list.
Mr. Foulke. It would have been on our national emphasis
program, yes.
Chairman Miller. But it was not.
Mr. Foulke. We had not----
Chairman Miller. But you are telling me about a program
that has evolved since the 1970s, and Imperial Sugar was not on
the list.
Mr. Foulke. On the national emphasis program?
Chairman Miller. No, no. On the inspection, the site----
Mr. Foulke. On our site-specific targeting. Mr. Chairman,
that is correct.
Chairman Miller. That is correct.
Mr. Foulke. They had--their lost-time injury and illness
rates were very low, and so they were not under our site-
specific targeting.
Chairman Miller. My time is--I will come back around.
Mr. McKeon?
Mr. McKeon. Thank you, Mr. Chairman.
Ms. Spencer, H.R. 5522 suggests that OSHA create a standard
no less productive than the NFPA 654 and 484.
How many other standards are referenced in those two
documents? Are these in the public domain? And if not, how much
would it cost a non-member of your organization to obtain these
materials to ensure any dust program meets the NFPA standards?
Ms. Spencer. Mr. McKeon, there are a number of documents
referenced in all of our NFPA codes and standards, because, for
instance, when there are electrical concerns, as there are with
dust, it would refer to the National Electrical Code. So, there
are a number of references.
All of the dust-specific--the specific commodity dusts are
referenced back to NFPA 654, which is the Fundamentals of Dust
document.
You also asked, are they available to the public. All of
our codes and standards are posted on our Web site for free
read only, so they are available for anybody with no cost.
If I may add another point. Mr. Sarvadi mentioned his
opinion that the NFPA codes and standards are ambiguous. And I
respectfully disagree with that. And he specifically mentioned
that the authority having jurisdiction, and other enforcers,
have a lot of leeway.
In NFPA codes and standards, in the body of the standard,
which is the mandatory portion of the standard, it is written
in mandatory language, all with ``shalls.'' There are
``shoulds'' in the advisory material that gives people
information.
With any kind of a regulation, including OSHA regulations,
there is some judgment that is necessary, every situation
cannot be addressed, due to the variables at each facility. The
committees and the documents cannot address every single
permutation of how a facility is laid out. So there has to be
judgment through the authority having jurisdiction and the
users of the standard.
So, I definitely disagree that the codes and standards are
ambiguous.
And his assertion that there is not buy-in, NFPA is an ANSI
accredited association. And all of our committees are balanced.
And we have public comment to--ANSI requires one set of public
comment on the changes. We have two.
We have a whole system set up, such that consensus is well
established.
Also, Assistant Secretary Foulke mentioned that more data
are needed before the codes and standards should--before it is
clear that a rulemaking should be done. And I disagree with
that also, respectfully.
The investigations, just through the CSB, have pointed to
all the same things, and they are the same things that NFPA
codes and standards have requirements on. It is a broad measure
of problems with the different types of dust.
And NFPA has had written documents since 1923. And decades
before that, there was initial work on that. So, it is highly
unlikely that there would be anything profoundly new in the
area of dust explosions that would be uncovered with the
national emphasis program.
The requirements are out there in NFPA codes and standards.
And we would like OSHA to mandatorily reference them, as
opposed to taking bits and pieces and creating their own
regulation on dust hazards.
NFPA has seven dust-related documents. And we request that
these be referenced mandatorily, such that it is a
comprehensive coverage of dust hazards.
Thank you.
Mr. McKeon. I am looking at this standard for the NFPA 654,
Standard for the Prevention of Fire and Dust Explosions From
Manufacturing, Processing and Handling of Combustible
Particulate Solids.
There is quite a bit of detailed explanation. And I am
wondering what kind of a degree you would need to, you know, to
put this into place.
I come from a business background, and I visit companies,
you know, some small, some large. And small companies, I do not
know where they would get the people to read and put in force
all of these things.
I understand the seriousness of the problem, but I like
what you said about it takes judgment. And at some point, there
has to be some local judgment. And I would think that people
are trying to do their best.
You know, we could put lots of laws in. We could have
somebody enforcing at everyone. And I guess there are still
some acts--I know the object is to prevent all accidents. And I
wish we could. And I guess we should continue to work toward
that.
But the more we write more documents like this that have
more and more detail A.9.7, the ignition temperature of a layer
of dust on hot surface--you know, it just goes on and on and
on. And I appreciate what you are doing.
It just looks like a very tough situation. And I have sat
through, now, a number of these hearings where we have had very
serious accidents, where we have had people lose their lives
and had loved ones here that are feeling that loss. They are
all tragedies. And I do not think anybody does any of these
things on purpose. It would be good if we could eliminate all
of the potential problems.
I commend what you are doing to try to alleviate things and
encourage you to continue it. But I guarantee you that a few of
us here passing a law is not going to change all of that, as
much as we try.
I do not know anybody more passionate and more caring about
it than Chairman Miller. But it is a tough situation.
Thank you, Mr. Chairman.
Ms. Spencer. If I may speak, Mr. McKeon, to you point.
You noted, what kind of degree do you need to be able to
look at this. And what you actually cited was in our advisory
material. What we try to do is also educate the people who are
using the standard. So, we have non-mandatory sort of
educational tidbits in the back.
The actual standard--it looks pretty big, but the actual
standard is about 20 pages. And it may look complicated. When
you are actually in the industry, you are going to know about a
lot of these things already.
This is just great reminders--mandatory reminders--of what
you have to do to keep your facility safe.
Thank you.
Chairman Miller. Thank you.
And I would just add to that that at the outset--I forget
if you were here or not--but it was made pretty clear that this
is a process, it is a consensus process.
These regulator drafts, or regulations, are a result of a
consensus process with business and regulators and other
associations and other interested people. That is why we tried
to go there first, that that was sort of the lowest
temperature.
Mr. Foulke, my understanding is that Imperial Sugar was not
on the national emphasis program list either.
Mr. Foulke. No, that is incorrect, your honor--or Mr.
Chairman.
Chairman Miller. Could you check that, because that is our
information. If you would check that out. We were told
locally----
Mr. Foulke. They had not been inspected under the national
emphasis program, but they would have been on the list of
facilities to be inspected eventually.
Chairman Miller. Okay. Well, if you would----
Mr. Foulke. They would----
Chairman Miller. If you could provide that information,
because we have received information----
Mr. Foulke. I will be happy to check into that, yes, sir.
Chairman Miller [continuing]. When we were on site, that
that was not the case.
Ms. Miser, what do you think?
Ms. Miser. As far as the standard goes? I feel like, to me
it makes no sense to do all this work, and have everything put
into this, and not just make a standard. If you are going to do
it all anyways, and everybody says they are going to do it,
then make a standard.
And I also feel like there are some companies--I mean,
there are many companies that are doing it and that are trying
to do it, and that are doing their best.
But the standards are for the companies that really do not
care. And there are companies out there that do not care. I
don't like to say that, but it is a fact. It is just the way
things go.
And I feel like this standard--if there is a standard made,
it will be applied to those people, to where it needs to be.
And I would really love to see it done.
I mean, there is nothing else I can say about that, except
for that it really--it would target the people that it should
be, the standard would be. And the voluntary things, I think
people are trying to do that, too.
But I think people would take it more seriously if there
was a standard, also, rather than just voluntarily doing this,
because I feel like, if you are volunteering to do it, sure,
you are doing a good thing, you are doing what you should be
doing. But you are not going to pay as close attention as to
what is really going on.
Chairman Miller. Thank you.
Mr. Wright, if I might. We are going to end this hearing,
because we have got a vote, and I do not think we can justify
your time to wait for us to go to another vote.
I am correct in understanding, Mr. Wright, that you
essentially said that OSHA's response to your recommendations
was unacceptable. And that is or is not the first time that the
Chemical Safety Board has made that reaction to a response to
their recommendations?
Mr. Wright. Is this with respect to the reactive chemicals?
Chairman Miller. Yes.
Mr. Wright. Yes, sir. We have an open unacceptable
standing, I guess, or classification for that particular
recommendation to OSHA.
If I may, sir, I would like to add with respect to the
discrete regulations that Secretary Foulke spoke of. The
general duty clause, the housekeeping standard, the
ventilation, the electrical--those are all discrete documents
that one would have to go search for or hunt out or review.
And what we are asking for is something that would give us
one-stop-shopping, that would encapsulate all the requirements,
as well as those that are contained in NFPAs.
There is no place within the OSHA standards currently for
management of change, in engineering design, explosion
prevention techniques and specifications. And we would like to
see those included in this comprehensive standard.
Chairman Miller. Well, I think that goes to Ms. Miser's
point. And that is that businesses would--you know, they
essentially either cherry-pick the knowledge or they, even
without cherry-picking it, they are not aware that this is
contained somewhere else, or they do the things that--cherry-
pick the easy things to do, or they think they are responding
properly.
But unless they can see a continuum of a plan and a scheme
how to keep the workplace safe, they in fact, I don't think,
are able to properly comply in terms of providing the kinds of
protections that are necessary.
I just--you know, I would just say in conclusion, that I
would hope that OSHA--well, I would hope that our legislation
passes, because we are not going to--hopefully not leave this
to doubt, given the kind of accident that we have seen recently
in Savannah and we have seen up until Savannah, that we have an
opportunity to deal with that.
But at some point, this has to be a comprehensive regime. I
believe it has to have the force and effect of regulations for
the core component of that regime. And I would hope that,
rather than avoiding that process, that OSHA would understand
that.
I appreciate you want to run every trap until you get to be
told to do that. I think you have to show that you can do both,
because I think at the end of the day, this is not going to
work without that regulatory scheme.
As I said, we are trying to start out here at a user-
friendly point, and then OSHA can make its determinations over
the next couple of years. But clearly, this regime should be
put in place.
I am a partisan with respect to the Chemical Safety Board.
I worked very hard for them to come into existence, and I
fought very hard against the chemical industry and others that
wanted them out of existence. And we knew what we were doing.
We were trying to get somebody who was impartial, who was
not there to find fault, who was there to look at the causation
of these and make recommendations. And I think that they have
developed over the years to be the gold standard in that effort
back and forth.
But I do not take their finding of this response being
unacceptable. And I do not take lightly to the idea that we can
somehow tailor a lot of different programs at a lot of
different levels, and recommendations and Web sites and all the
rest of that, and we can then impute the kind of knowledge and
activity that is necessary to protect these workers.
So, this committee will continue that deliberation. But I
hope that we will shortly be able to take action.
And I want to thank all of you for your testimony, for your
expertise. And I hope that we will be able to continue to call
on you as we move to the next stage of this process.
Thank you.
[The statement of Mr. Altmire follows:]
Prepared Statement of Hon. Jason Altmire, a Representative in Congress
From the State of Pennsylvania
Thank you, Mr. Chairman, for holding this important hearing on the
Combustible Dust Explosion and Fire Prevention Act of 2008 (HR 5522).
I would like to take this opportunity to express my condolences to
all of the families who lost loved ones at the Imperial Sugar plant
explosion in Savannah, Georgia on February 7, 2008. My thoughts and
prayers are also with the 11 plant workers who remain in critical
condition. I wish them all a speedy and full recovery.
Today, I want to hear more about the conditions that led to the
explosion at the Imperial Sugar plant and about similar explosions
caused by combustible dust in the recent past. I am also interested in
learning more about the specific provisions in the Combustible Dust
Explosion and Fire Prevention Act.
Thank you again, Mr. Chairman, for holding this important hearing.
______
[The statement of Ms. Woolsey follows:]
Prepared Statement of Hon. Lynn C. Woolsey, a Representative in
Congress From the State of California
Thank you, Mr. Chairman for holding this hearing on ``The
Combustible Dust Explosion and Prevention Act.'' This legislation,
which requires OSHA to issue a comprehensive combustible dust standard,
is essential in keeping workers safe. I am proud to be a cosponsor of
it.
This legislation is a follow-up to a February 8, 2008 letter that
Chairman Miller and I sent to Secretary Chao urging her to issue a
combustible dust standard.
But that suggestion has gone unheeded, so we, in Congress must step
in to protect American workers.
My heart goes out to Tammy Miser--you are so brave to come here and
testify today--and all the other family members of the workers killed
and injured as a result of an explosion at the Imperial Sugar Refinery
in Georgia on February 7 of this year.
Twelve workers were killed and 8 others remain in critical
condition due to severe burns.
The culprit was combustible dust.
This is yet another incident could have been prevented, had OSHA
put a comprehensive standard in place to address the dangers of
``combustible dust.''
I wish I could say that OSHA's lack of action is surprising; sadly
it is not. This Administration has the worst record of standard setting
of any administration in the history of the law.
For the past 7 years, it has abdicated its role as a safety and
health watchdog, relying instead on voluntary--largely ineffective--
programs. Last year, my Subcommittee on Workforce Protections held a
hearing on the dangers of the chemical diacetyl in the workplace. Like
combustible dust, the hazards of diacetyl have been well-known for
years.
The Administration strongly resisted putting a standard for
diacetyl in place despite growing evidence that exposure to the
chemical causes ``popcorn lung,'' a disabling and often fatal
respiratory disease.
So I introduced a bill, The Popcorn Lung Disease Protection Act, to
force the Administration to develop a standard for diacetyl. This
legislation passed in the House and is pending in the Senate.
Now we now need to take the same action with regard to combustible
dust, despite the fact that OSHA is well aware of the necessity for a
standard, made even more urgent by the tragic events at Imperial Sugar.
In fact in 2006, the Chemical Safety Board conducted a major study
of combustible dust and its dangers. It reported that between 1980 and
2005, there had been 281 incidents, including incidents at sugar plants
that killed 119 workers and injured 718. And it pointed out that there
were proven methods to control combustible dust hazards that had been
around and in use for years.
As a result of its study the Board recommended that OSHA put a
comprehensive combustible dust standard in place to prevent these
hazards.
But more than a year later OSHA is not taking any action to
establish a standard.
We know that the standards OSHA has established have saved
literally thousands of lives.
For example, in 1978 when OSHA's cotton dust standard was adopted,
there were 40,000 cases of Brown Lung disease annually--12 percent of
all textile workers suffered from this deadly disease.
By 2000, and because of the OSHA standard, brown lung was virtually
eliminated.
OSHA's 1978 standard on lead dramatically reduced lead poisoning.
And the 1989 Excavation Standard designed to protect workers from
trench collapses has reduced deaths by more than 20% while construction
activity has increased by 20%.
Mr. Chairman, workers need a standard on combustible dust, and they
need it now.
Thank you for your commitment to this issue.
______
[Questions for the record submitted to Mr. Foulke follow:]
Committee on Education and Labor,
U.S. House of Representatives,
Washington, DC, March 13, 2008.
Hon. Edwin Foulke, Assistant Secretary of Labor,
U.S. Department of Labor, Constitution Avenue, NW, Washington, DC.
Dear Assistant Secretary Foulke: Thank you for testifying at the
March 12, 2008 full Committee hearing on ``The Combustible Dust Fire
and Explosion Prevention Act of 2008.''
At yesterday's hearing, you committed to answering the following
questions that were raised at the hearing.
1. Please inform the committee of the number of OSHA Compliance
Safety and Health Officers who have received OSHA's three-and-a-half
day combustible dust training program(s), and the date(s) on which
those trainings were held. We would also like to know how many CSHOs
received training in OSHA's combustible dust ``refresher'' training
held on March 10, 2008.
In addition, your testimony recommended that businesses take
advantage of free assistance provided by state consultation programs.
Please include information on how many state consultants have
participated in OSHA's three-and-a-half day combustible dust training
program(s) and/or the March 10 ``refresher'' course.
Please supply the training curriculum along with the aforementioned
information.
2. The Committee has learned that the Imperial Sugar plant in Port
Wentworth was not included in the original list of facilities supplied
to the Savannah Area Office under the October 18, 2007 Combustible Dust
National Emphasis Program. You responded that Imperial Sugar was on the
list.
Please supply the committee with a copy of the original list sent
to the Savannah Area Office.
In addition, Ms. Woolsey (CA-06) asked that you respond to the
following questions:
1. Your testimony cites many OSHA standards with approval. Yet OSHA
has been resistant to promulgating new standards. In what instances
would OSHA decide that a standard is absolutely necessary?
2. You have testified that while you have not ruled out a standard,
you want to try the National Emphasis Program first. Why have you
chosen to proceed in that fashion, given the most recent incident at
Imperial Sugar and the fact that the Chemical Safety Board recommended
to your Agency over a year ago that you promulgate a comprehensive
standard for combustible dust?
3. The number of standards that arguably apply to combustible dust
is dizzying. How do those businesses with combustible dust issues sift
through these standards and apply them to their own situation?
Please send your written response to the Committee staff at by COB
on Wednesday, March 26, 2008--the date on which the hearing record will
close. If you have any questions, please contact the Committee. Once
again, we greatly appreciate your testimony at this hearing.
Sincerely,
George Miller,
Chairman.
______
[Responses to questions for the record from Mr. Foulke
follow:]
------
[Whereupon, at 1:00 p.m., the committee was adjourned.]