[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.]

                                 
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