[House Report 110-601]
[From the U.S. Government Publishing Office]
110th Congress Report
HOUSE OF REPRESENTATIVES
2d Session 110-601
======================================================================
COMBUSTIBLE DUST EXPLOSION AND FIRE PREVENTION ACT OF 2008
_______
April 22, 2008.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. George Miller of California, from the Committee on Education and
Labor, submitted the following
R E P O R T
together with
MINORITY VIEWS
[To accompany H.R. 5522]
[Including cost estimate of the Congressional Budget Office]
The Committee on Education and Labor, to whom was referred
the bill (H.R. 5522) to require the Secretary of Labor to issue
interim and final occupational safety and health standards
regarding worker exposure to combustible dust, and for other
purposes, having considered the same, report favorably thereon
with an amendment and recommend that the bill as amended do
pass.
The amendment is as follows:
Strike all after the enacting clause and insert the
following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Combustible Dust Explosion and Fire
Prevention Act of 2008''.
SEC. 2. FINDINGS.
Congress finds the following:
(1) An emergency exists concerning worker exposure to
combustible dust explosions and fires.
(2) 13 workers were killed and more than 60 seriously injured
in a catastrophic combustible dust explosion at Imperial Sugar
in Port Wentworth, Georgia on February 7, 2008.
(3) Following 3 catastrophic dust explosions that killed 14
workers in 2003, the Chemical Safety and Hazard Investigation
Board (CSB) issued a report in November 2006, which identified
281 combustible dust incidents between 1980 and 2005 that
killed 119 workers and injured 718. The CSB concluded that
``combustible dust explosions are a serious hazard in American
industry''.
(4) A quarter of the explosions occurred at food industry
facilities, including sugar plants. Seventy additional
combustible dust explosions have occurred since 2005.
(5) Material Safety Data Sheets (MSDSs) often do not
adequately address the hazards of combustible dusts, and the
OSHA Hazard Communication Standard (HCS) inadequately addresses
dust explosion hazards and fails to ensure that safe work
practices and guidance documents are included in MSDSs.
(6) The CSB recommended that OSHA issue a standard designed
to prevent combustible dust fires and explosions in general
industry, based on current National Fire Protection Association
(NFPA) dust explosion standards.
(7) The CSB also recommended that OSHA revise the Hazard
Communication Standard (HCS) (1910.1200) to clarify that
combustible dusts are covered and that Material Safety Data
Sheets contain information about the hazards and physical
properties of combustible dusts.
(8) OSHA has not initiated rulemaking in response to the
CSB's recommendation.
(9) OSHA issued a grain handling facilities standard (29
C.F.R. 1910.272), in 1987 that has proven highly effective in
reducing the risk of combustible grain dust explosions,
according to an OSHA evaluation.
(10) No Occupational Safety and Health Administration
standard comprehensively addresses combustible dust explosion
hazards in general industry.
(11) Voluntary National Fire Protection Association standards
exist which, when implemented, effectively reduce the
likelihood and impact of combustible dust explosions.
SEC. 3. ISSUANCE OF STANDARD ON COMBUSTIBLE DUST.
(a) Interim Standard.--
(1) Application and rulemaking.--Notwithstanding any other
provision of law, not later than 90 days after the date of
enactment of this Act, the Secretary of Labor shall promulgate
an interim final standard regulating combustible dusts. The
interim final standard shall, at a minimum, apply to
manufacturing, processing, blending, conveying, repackaging,
and handling of combustible particulate solids and their dusts,
including organic dusts (such as sugar, candy, paper, soap, and
dried blood), plastics, sulfur, wood, rubber, furniture,
textiles, pesticides, pharmaceuticals, fibers, dyes, coal,
metals (such as aluminum, chromium, iron, magnesium, and zinc),
fossil fuels, and others determined by the Secretary, but shall
not apply to processes already covered by OSHA's standard on
grain facilities (29 C.F.R. 1910.272).
(2) Requirements.--The interim final standard required under
this subsection shall include the following:
(A) Requirements for hazard assessment to identify,
evaluate, and control combustible dust hazards.
(B) Requirements for a written program that includes
provisions for hazardous dust inspection, testing, hot
work, ignition control, and housekeeping, including the
frequency and method or methods used to minimize
accumulations of combustible dust on ledges, floors,
equipment, and other exposed surfaces.
(C) Requirements for engineering, administrative
controls, and operating procedures, such as means to
control fugitive dust emissions and ignition sources,
the safe use and maintenance of dust producing and dust
collection systems and filters, minimizing horizontal
surfaces where dust can accumulate, and sealing of
areas inaccessible to housekeeping.
(D) Requirements for housekeeping to prevent
accumulation of combustible dust in places of
employment in such depths that it can present
explosion, deflagration, or other fire hazards,
including safe methods of dust removal.
(E) Requirements for employee participation in hazard
assessment, development of and compliance with the
written program, and other elements of hazard
management.
(F) Requirements to provide written safety and health
information and annual training to employees, including
housekeeping procedures, hot work procedures,
preventive maintenance procedures, common ignition
sources, and lock-out, tag-out procedures.
(3) Procedure.--The requirements in this subsection shall
take effect without regard to the procedural requirements
applicable to regulations promulgated under section 6(b) of the
Occupational Safety and Health Act of 1970 (29 U.S.C. 655(b))
or the procedural requirements of chapter 5 of title 5, United
States Code.
(4) Effective date of interim standard.--The interim final
standard shall take effect 30 days after issuance. The interim
final standard shall have the legal effect of an occupational
safety and health standard, and shall apply until a final
standard becomes effective under section 6 of the Occupational
Safety and Health Act (29 U.S.C. 655).
(b) Final Standard.--
(1) Rulemaking.--Not later than 18 months after the date of
enactment of this Act, the Secretary of Labor shall, pursuant
to section 6 of the Occupational Safety and Health Act (29
U.S.C. 655), promulgate a final standard regulating combustible
dust explosions.
(2) Requirements.--The final standard required under this
subsection shall include the following:
(A) The scope described in subsection (a)(1).
(B) The worker protection provisions in subsection
(a)(2).
(C) Requirements for managing change of dust
producing materials, technology, equipment, staffing,
and procedures.
(D) Requirements for building design such as
explosion venting, ducting, and sprinklers.
(E) Requirements for explosion protection, including
separation and segregation of the hazard.
(F) Relevant and appropriate provisions of National
Fire Protection Association combustible dust standards,
including the ``Standard for the Prevention of Fire and
Dust Explosions from the Manufacturing, Processing, and
Handling of Combustible Particulate Solids'' (NFPA
654), ``Standard for Combustible Metals'' (NFPA 484),
and ``Standard for the Prevention of Fires and Dust
Explosions in Agricultural and Food Processing
Facilities'' (NFPA 61).
SEC. 4. REVISION OF THE HAZARD COMMUNICATION STANDARD.
(a) Revision Required.--Notwithstanding any other provision of law,
not later than 6 months after the date of enactment of this Act, the
Secretary of Labor shall revise the hazard communication standard in
section 1910.1200 of title 29, Code of Federal Regulations, by amending
the definition of ``physical hazard'' in subsection (c) of such section
to include ``a combustible dust'' as an additional example of such a
hazard.
(b) Effect of Modifications.--The modification under this section
shall be in force until superseded in whole or in part by regulations
promulgated by the Secretary of Labor under section 6(b) of the
Occupational Safety and Health Act of 1970 (29 U.S.C. 655(b)) and shall
be enforced in the same manner and to the same extent as any rule or
regulation promulgated under section 6(b).
(c) Effective Date.--The modification to the hazard communication
standard required shall take effect within 30 days after the
publication of the revised rule.
I. PURPOSE
The purpose of this legislation is to direct the
Occupational Safety and Health Administration to issue a
standard regulating worker exposure to combustible dust
explosion and fire hazards. Although the hazards of combustible
dust explosions and fires and how to prevent them have been
well recognized for many decades, and despite the recent sugar
dust explosion and fire at Imperial Sugar in Port Wentworth,
Georgia, the Occupational Safety and Health Administration has
not taken any significant regulatory action to prevent worker
exposure to combustible dust explosions and fires.
ii. committee action including legislative history and votes in
committee
Action in previous Congresses
There was no action on combustible dust in previous
Congresses.
110th Congress
Hearing on ``Have OSHA standards kept up with workplace hazards?''
On April 24, 2007, the Workforce Protections Subcommittee,
led by chairwoman Lynn Woolsey (D-CA), conducted an oversight
hearing titled ``Have OSHA Standards Kept up With Workplace
Hazards?'' in order to address the lack of OSHA standards
issued over the past six years. The witnesses discussed the
obstacles to issuing OSHA standards, opportunities to speed up
the process and the human cost of failing to issue needed
protective standards. Witnesses included Assistant Secretary of
Labor Edwin Foulke, Scott Schneider, Director of Occupational
Safety and Health for the Laborers' Health and Safety Fund of
North America, Frank Mirer, PhD, Professor of Environmental and
Occupational Health Sciences, Hunter School of Urban Public
Health, New York, Baruch Fellner an attorney at Gibson, Dunn
and Crutcher, and Eric Peoples, a former employee of Glister-
Mary Lee popcorn factory, victim of bronchiolitis obliterans
(popcorn lung).
Introduction of H.R. 5522, the ``Combustible Dust Fire and Explosion
Prevention Act of 2008''
On March 4, 2008, the ``Combustible Dust Fire and Explosion
Prevention Act of 2008,'' as H.R. 5522, was introduced in the
110th Congress by Chairman George Miller, joined by
Representative John Barrow (D-GA) as a lead co-sponsor.
Full Committee hearing on H.R. 5522
On March 12, 2008, the full Education and Labor Committee,
led by Chairman George Miller, held a hearing on H.R. 5522, the
``Combustible Dust Fire and Explosion Prevention Act of 2008''.
The witnesses discussed the need for an enforceable standard
that prevents combustible dust explosions and the existence of
effective, well-recognized voluntary standards that could form
the basis of an OSHA standard. The witnesses included Acting
Chair of the Chemical Safety Board, William Wright, Assistant
Secretary of Labor Edwin Foulke, Tammy Miser whose brother was
killed in a combustible dust explosion, David Sarvadi,
representing the U.S. Chamber of Commerce, and Amy Spencer,
representing the National Fire Protection Association.
Full Committee markup of H.R. 5522
On April 9, 2009 the Committee on Education and Labor met
to markup H.R. 5522, Combustible Dust Fire and Explosion
Prevention Act of 2008. The Committee adopted by voice vote an
amendment in the nature of a substitute offered by Mrs. Woolsey
which moved some requirements originally in the Interim
Standard to the Full Standard. The substitute also removed the
requirement to add a specific definition of ``combustible
dust'' to the Hazard Communication Standard, but left the
requirement that combustible dust be included as a ``physical
hazard.''
Mr. Wilson offered an amendment in the nature of a
substitute that would have delayed a decision about the
necessity of a combustible dust standard until completion of
the Department of Labor's investigation of the February 7, 2008
explosion that occurred at Imperial Sugar, and based on data
gathered from the Combustible Dust National Emphasis program.
The amendment was defeated by a voice vote.
The Committee voted to favorably report H.R. 5522 by a
voice vote.
III. SUMMARY OF THE BILL
H.R. 5522 requires OSHA to issue an Interim Final
combustible dust standard within 90 days and a permanent
standard within 18 months.
The bill lays out a number of specific items that would be
required under the Interim Final Standard. While many of these
items are currently being enforced by OSHA as part of its
National Emphasis Program, the Interim Standard would spell out
detailed requirements for preventing combustible dust
explosions and fires instead of forcing businesses to
``interpret'' safe practices from current OSHA standards that
are not directly related to this hazard. OSHA would be relieved
of normal procedural requirements for the Interim Standard.
The Interim Standard would also require additional items
not now required by OSHA, such as a written dust control
program, hazard assessment, worker training and employee
participation in the development and conduct of the dust
control program.
In the Final Standard, OSHA would be required to ``review
and adopt appropriate and relevant provisions of National Fire
Protection Association combustible dust standards'' and add
several specific items not included in the Interim Standard
such as ``building design,'' and ``management of change
requirements.'' OSHA would go through the normal rulemaking
procedures for the final standard, including feasibility
analyses, public comment and public hearings.
The bill would also require OSHA to include ``combustible
dust'' in the definition of physical hazards in OSHA's Hazard
Communication Standard, (CFR 1910.1200).
IV. STATEMENT AND COMMITTEE VIEWS
The Committee on Education and Labor of the 110th Congress
is committed to ensuring that the federal government does
everything within its power to ensure that workplaces are safe
and that the health and safety of American workers is
protected, consistent with the goals of the Occupational Safety
and Health Act of 1970.
H.R. 5522 addresses the protection of workers from
combustible dust explosions and fires. The committee considers
combustible dust hazards to be an emergency. On February 7,
2008, a massive explosion ripped through the Imperial Sugar
Refinery in Port Wentworth, Georgia. Thirteen workers have
died. More than 60 others were injured, many critically. Many
of those who survive face life-long disability and
disfigurement from severe burns resulting for the explosion and
fire. The U.S. Chemical Safety and Hazard Investigation Board
(CSB) and the Occupational Safety and Health Administration
have launched major investigations into the causes of the
explosion and have preliminarily concluded that the explosion
was caused by combustible sugar dust.\1\
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\1\Statement of CSB Investigations Manager Stephen Selk, P.E.,
Updating the Public on the Investigation of the Imperial Sugar Company
Explosion and Fire, Savannah, Georgia, February 18, 2008.
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The hazards of combustible dusts are nothing new. In 2006,
following a series of fatal combustible dust explosions in
2003, the CSB conducted a major study of combustible dust
hazards.\2\ The CSB identified 281 combustible dust incidents
between 1980 and 2005 that killed 119 workers and injured 718,
and extensively damaged industrial facilities. A total of 24%
of the explosions occurred in the food industry, including
several at sugar plants. The CSB report concluded that
``combustible dust explosions are a serious hazard in American
industry, and that existing efforts inadequately address this
hazard.''
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\2\US Chemical Safety and Hazard Investigation Report, Combustible
Dust Hazard Study, Report No. 2006-H-1, November 2006.
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The CSB found that there is no comprehensive federal
Occupational Safety and Health Administration standard that
effectively controls the risk of dust explosions in general
industry. The Board therefore recommended that OSHA issue a
mandatory standard. Yet, to this date, more than a year after
the CSB report was issued, OSHA has no plans to develop a
mandatory combustible dust standard.
OSHA has failed to act to protect workers even though
effective measures to protect workers from combustible dust
explosions are well recognized. Voluntary standards issued by
the National Fire Protection Association (NFPA) provide
effective and detailed measures that can be taken to prevent
these tragic explosions. And OSHA's Grain Facilities Handling
Standard, issued in 1987, partially in response to a number of
catastrophic grain dust explosions, has effectively reduced the
number of fatalities in this industry.
As the Imperial Sugar explosion tragically made clear,
however, voluntary standards are not enough. Without an OSHA
standard, many employers are unaware of the hazards of
combustible dusts and control methods, and others have failed
to comply with voluntary standards.
Combustible dust hazards
Dust from any organic material or metal that can burn, can
also explode if the particles are fine enough, and if they are
mixed with air in a confined area. As little as \1/32\nd of an
inch of dust (the width of a paperclip), spread over just 5% of
a room surface presents a significant explosion hazard,
according to the National Fire Protection Association.\3\
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\3\NFPA 654, Standard for the Prevention of Fire and Dust
Explosions from the Manufacturing, Processing, and Handling of
Combustible Particulate Solids.
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Typically, a small event or ``primary'' explosion occurs
which then suspends significant amounts of nearby dust from
floor or rafters in the air, causing a much larger
``secondary'' explosion, which may then cause even larger
cascading secondary explosions. Because of the scale of
destruction, the initiating event is often never identified.
Preliminary findings of the CSB indicate that the Imperial
explosion falls into this pattern:
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.
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.\4\
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\4\H.R. 5522, The Combustible Dust Explosion and Fire Prevention
Act of 2008, Hearing before the Committee on Education and Labor, 110th
Congress, 2nd Session (2008) (Written testimony of William Wright)
[Hereinafter Wright Testimony].
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The hazards of combustible dusts have been known for
centuries. In 1923, the National Fire Protection Association
issued its first combustible dust standard. Today, NFPA has
seven separate combustible dust standards which are generally
updated every five years.
When the Occupational Safety and Health Act was passed in
1970, Congress authorized the newly formed Occupational Safety
and Health Administration to adopt any national consensus
standards ``unless [the Secretary of Labor] determines that the
promulgation of such a standard would not result in improved
safety or health for specifically designated employees.''
Although OSHA adopted a number of consensus standards,
including NFPA standards, the agency chose not to adopt any
NFPA combustible dust standards.
Combustible dust hazards were the subject of a major
Chemical Safety Board (CSB) study issued in 2006. The study
concluded that combustible dust explosions were a major problem
in American industry and that there was no mandatory OSHA
standard to prevent them in General Industry. (There is a grain
handling standard which addresses grain dust in grain silos,
issued in 1987, that has been highly effective in preventing
explosions and saving lives, according to an OSHA evaluation.)
In its 2006 study, the CSB found that the voluntary
standard issued by the National Fire Protection Association was
effective if employers complied, but that there was no
government entity except for OSHA that could require facilities
to comply with the safe work practices detailed in the NFPA
standard.
Based on the results of its investigation, the CSB made
five recommendations to OSHA:\5\
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\5\U.S. Chemical Safety and Hazard Investigation Report,
Combustible Dust Hazard Study, Report No. 2006-H-1, November 2006.
---------------------------------------------------------------------------
1. Issue a standard designed to prevent combustible dust
fires and explosions in general industry. Base the standard on
current National Fire Protection Association (NFPA) dust
explosion standards.
2. Revise the Hazard Communication Standard (HCS)
(1910.1200) to clarify that the HCS covers combustible dusts,
and that Material Safety Data Sheets (MSDSs) must include
important information about combustible dusts.
3. Communicate to the United Nations Economic Commission
for Europe (UNECE) the need to amend the Globally Harmonized
System (GHS) to address combustible dust hazards.
4. Provide training through the OSHA Training Institute
(OTI) on recognizing and preventing combustible dust
explosions.
5. While a standard is being developed, identify
manufacturing industries at risk and develop and implement a
national Special Emphasis Program (SEP) on combustible dust
hazards in general industry.
OSHA has not proceeded aggressively to prevent worker exposure to
combustible dust fires and explosions
In 2005, in response to three fatal dust explosions in
2003, OSHA issued a Safety and Health Information Bulletin,
Combustible Dust in Industry: Preventing and Mitigating the
Effects of Fire and Explosions. No public announcement was made
at the time the SHIB was issue and the SHIB was not distributed
to companies at risk.
In October 2007, almost a year after the release of the CSB
report, OSHA launched a combustible dust National Emphasis
Program (NEP).\6\ Under the NEP, each of OSHA's 90 Area Offices
received a list of locations that may have dust hazards and
were required to randomly choose one to inspect in the coming
year. The 21 states that run their own OSHA programs are not
required to participate in the NEP. On March 11, 2008, OSHA
reissued the NEP, raising the total number of annual
inspections to around 300.\7\
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\6\Occupational Safety and Health Administration, CPL 03-00-006--
Combustible Dust National Emphasis Program, October 18, 2007.
\7\Occupational Safety and Health Administration, CPL 03-00-008--
Combustible Dust National Emphasis Program (Reissued), March 11, 2008.
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On February 8, 2008, immediately following the Imperial
Sugar explosion, Representatives George Miller and Lynn Woolsey
sent a letter to OSHA asking that the agency ``take immediate
steps to issue a standard to prevent combustible dust
explosions as recommended to your agency by the Chemical Safety
Board (CSB) in November 2006.''\8\
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\8\Letter from Reps. George Miller and Lynn Woolsey to Secretary of
Labor Elaine Chao, February 8, 2008.
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And on February 19, 2008, the United Food and Commercial
Workers union and the International Brotherhood of Teamsters
petitioned OSHA for a combustible dust standard.
In early March 2008, OSHA created a new Web page and sent
letters and fact sheets to 30,000 employers with combustible
dust hazards warning them to ``take necessary steps'' to
prevent such explosions. OSHA also offers free training from
state consultation programs although there is little evidence
that sufficient numbers of consultants have been trained in the
causes and prevention of combustible dust hazards.\9\
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\9\Letter from Assistant Secretary Edwin Foulke to Rep. George
Miller, March 27, 2008.
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It was not until March 27, 2008--almost a year and a half
after the CSB recommendations were released, almost two months
after the Imperial explosion and three weeks after the
introduction of H.R. 5522--that the CSB received its first
substantive response from OSHA regarding its 2006 combustible
dust recommendations.
OSHA informed the CSB that the agency had not yet decided
on whether to issue a standard:
OSHA continues to consider this recommendation. In
general, OSHA has learned that a multi-pronged
approach, which encompasses ways to educate employers
and employees about existing standards and best
practices, combined with outreach, training and, of
course, effective enforcement efforts, is the best way
to address most Occupational safety and health hazards,
including those arising from combustible dust.\10\
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\10\Letter from Assistant Secretary Edwin Foulke to Chairman John
Bresland, March 27, 2008.
Unfortunately, OSHA's responses to the combustible dust
hazard--educational materials and the National Emphasis
Program--have not been adequate. OSHA's combustible dust SHIB
and other informational publications are useful for employers
who want information about combustible dust hazards, but as
with other OSHA compliance assistance documents, these
guidelines cannot be used for enforcement. Tammy Miser pointed
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out the confusion this may cause:
At the very beginning, the first things that [the
SHIB] says, it says, this safety and health information
bulletin is not a standard or a regulation. It creates
no legal obligations.
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.\11\
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\11\H.R. 5522, The Combustible Dust Explosion and Fire Prevention
Act of 2008, Hearing before the Committee on Education and Labor, 110th
Congress, 2nd Session (2008) (Written testimony of Tammy Miser)
[Hereinafter Miser Testimony].
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According to CSB Acting Chairman William Wright:
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.\12\
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\12\H.R. 5522, The Combustible Dust Explosion and Fire Prevention
Act of 2008, Hearing before the Committee on Education and Labor, 110th
Congress, 2nd Session (2008) (Written testimony of William Wright)
[Hereinafter Wright Testimony].
Indeed, preliminary findings of the CSB show that OSHA's
compliance assistance efforts had little apparent effect on
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Imperial Sugar's adoption of safe combustible dust procedures.
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.\13\
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\13\H.R. 5522, The Combustible Dust Explosion and Fire Prevention
Act of 2008, Hearing before the Committee on Education and Labor, 110th
Congress, 2nd Session (2008) (Written testimony of William Wright)
[Hereinafter Wright Testimony].
Nor are the enforcement efforts being conducted under the
NEP adequate. Under the NEP, OSHA plans to cite employers for
combustible dust hazards using a variety of existing general
standards, such as housekeeping (which requires employers to
clean up the dust), electrical standards (which control some
ignition sources) and the General Duty Clause, that requires
employers to address ``recognized'' hazards even where there is
no OSHA standard. The General Duty Clause is difficult to
enforce and is mostly used after an incident.
In the debate over whether an OSHA combustible dust
standard is needed, Assistant Secretary Ed Foulke has argued
that existing OSHA are adequate to address combustible dust
issues:
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.\14\
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\14\H.R. 5522, The Combustible Dust Explosion and Fire Prevention
Act of 2008, Hearing before the Committee on Education and Labor, 110th
Congress, 2nd Session (2008) (Written testimony of Edwin Foulke)
[Hereinafter Foulke Testimony].
Enforcement of these standards is, according to Foulke,
being used successfully to address combustible dust safety
under a Combustible Dust National Emphasis Program announced in
October 2007 and revised in March 2008.
Under the Combustible Dust NEP, OSHA will conduct around 90
combustible dust inspections over the next year from a list of
possible at-risk worksites supplied by the national office.
OSHA issued a Compliance Directive\15\ to provide instructions
to OSHA inspectors on which existing OSHA standards can be used
to enforce combustible dust precautions.
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\15\Occupational Safety and Health Administration, CPL 03-00-006--
Combustible Dust National Emphasis Program, October 18, 2007.
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Under the NEP, each of OSHA's 90 Area Offices received a
list of locations, which may have dust hazards and must
randomly choose one to inspect in the coming year. The 26 State
Plan States (such as California, Maryland, Michigan, Arizona,
Iowa, Oregon, Hawaii and Virginia) are not required to
participate. (The CSB had recommended that OSHA establish a
Combustible Dust National Emphasis Program while it was working
on a standard, not instead of a standard.)
OSHA will attempt to cite employers under the NEP using a
variety of related standards such as housekeeping (which
requires employers to clean up the dust), electrical standards
(which control some ignition sources) and the General Duty
Clause (which requires employers to address ``recognized''
hazards even where there is no OSHA standard).
These existing standards cannot be used as effectively as a
dedicated combustible dust standard. As CSB Acting Chairman
William Wright testified:
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.\16\
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\16\H.R. 5522, The Combustible Dust Explosion and Fire Prevention
Act of 2008, Hearing before the Committee on Education and Labor, 110th
Congress, 2nd Session (2008) (Written testimony of William Wright)
[Hereinafter Wright Testimony].
OSHA standards have two purposes: to educate the employer
about what needs to be done to prevent the hazard and comply
with the law. And second, to indicate to the OSHA inspector
which standards can be used to cite an employer when hazardous
conditions exist.
Although there are a variety of existing OSHA standards
that inspectors can interpret to apply to combustible dust
hazards (which satisfies the need to provide a legal basis for
inspectors to enforce safe working conditions), most of the
existing standards (e.g. housekeeping and General Duty) do
nothing to educate or inform employers about how to prevent
combustible dust explosions.
For example, the often-cited ``housekeeping standard,'' (29
CFR 1910.22(a)), originally written to ensure that puddles and
refuse don't cause slipping and tripping hazards, is now used
for combustible dust violations. The relevant parts of this
standard simply state that ``(1) All places of employment,
passageways . . . and service rooms shall be kept clean . . .
(2) The floor of every workroom shall be maintained in a clean
. . . condition.'' It contains nothing about what levels of
dust are safe, how to clean dust safely or how to prevent dust
from accumulating to unsafe levels.
An example of the importance of dedicated dust standards
that contain specific information about how to prevent
combustible dust explosions was demonstrated during the March
12 hearing in which David Sarvadi, an attorney and industrial
hygienist, noted the difficulty involved in preventing a 2003
dust explosion at West Pharmaceuticals in which fugitive dust
had gathered above the suspended ceiling. Sarvadi noted that:
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.\17\
---------------------------------------------------------------------------
\17\H.R. 5522, The Combustible Dust Explosion and Fire Prevention
Act of 2008, Hearing before the Committee on Education and Labor, 110th
Congress, 2nd Session (2008) (Oral testimony of David Sarvadi)
[Hereinafter Sarvadi Testimony].
In fact, however, NFPA 654 specifically states that
``Spaces inaccessible to housekeeping shall be sealed to
prevent dust accumulation.''\18\ Nowhere does OSHA's
housekeeping standard warn about concealed dust in accessible
areas. The CSB concluded that if NFPA standards had been
followed, the West explosion would probably have been
prevented.\19\
---------------------------------------------------------------------------
\18\National Fire Protection Association, NFPA 654, Standard for
the Prevention of Fire and Dust Explosion from the Manufacturing,
Processing, and Handling of Combustible Particulate Solids, 2006.
\19\U.S. Chemical Safety and Hazard Investigation Report,
Combustible Dust Hazard Study, Report No. 2006-H-1, November 2006.
---------------------------------------------------------------------------
A second reason that existing OSHA standards are inadequate
to prevent combustible dust explosions is that it is overly
burdensome for both employers OSHA inspectors to use numerous
existing standards to cite employers for unsafe combustible
dust conditions.
The compliance directive that lays out OSHA's combustible
dust National Emphasis Program lists more than 25 separate OSHA
standards that inspectors may use to cite combustible dust
hazards, depending on the circumstances.
For example, in order to cite under OSHA's General Duty
Clause (which simply requires employers to keep the workplace
safe from ``recognized hazards'') inspectors are told to
familiarize themselves with NFPA standards and the employer's
safety manuals. They are instructed to ``search for articles
dealing with the combustible dust hazard in publications
dealing with the employer's industry.'' This is much more
burdensome for inspectors and employers than simply citing
clear, obvious violations of a standard. The CSB also noted
that General Duty Clause citations occur primarily after an
incident has occurred and are therefore not generally useful in
preventing such incidents.\20\
---------------------------------------------------------------------------
\20\U.S. Chemical Safety and Hazard Investigation Report,
Combustible Dust Hazard Study, Report No. 2006-H-1, November 2006.
---------------------------------------------------------------------------
In conclusion, the general nature and lack of specificity
accompanying current OSHA standards make them a poor substitute
for a dedicated OSHA combustible dust standard. As CSB Acting
Chair Wright testified:
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.\21\
---------------------------------------------------------------------------
\21\H.R. 5522, The Combustible Dust Explosion and Fire Prevention
Act of 2008, Hearing before the Committee on Education and Labor, 110th
Congress, 2nd Session (2008) (Written testimony of William Wright)
[Hereinafter Wright Testimony].
---------------------------------------------------------------------------
Workers are paying the price for OSHA inaction
The CSB identified 281 combustible dust incidents between
1980 and 2005 that killed 119 workers and injured 718, and
extensively damaged industrial facilities. A total of 24% of
the explosions occurred in the food industry, including several
at sugar plants.
The CSB report concluded that ``combustible dust explosions
are a serious hazard in American industry, and that existing
efforts inadequately address this hazard.''
Tammy Miser, whose brother, Shawn Boone, was killed in a
2003 combustible dust explosion at Hays Lemmerz, described the
suffering that her brother and her family endured:
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.\22\
---------------------------------------------------------------------------
\22\H.R. 5522, The Combustible Dust Explosion and Fire Prevention
Act of 2008, Hearing before the Committee on Education and Labor, 110th
Congress, 2nd Session (2008) (Written testimony of Tammy Miser)
[Hereinafter Miser Testimony].
Because of the horrific burns that Shawn Boone suffered,
---------------------------------------------------------------------------
his family soon had to decide to withdraw life support.
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.\23\
---------------------------------------------------------------------------
\23\H.R. 5522, The Combustible Dust Explosion and Fire Prevention
Act of 2008, Hearing before the Committee on Education and Labor, 110th
Congress, 2nd Session (2008) (Written testimony of Tammy Miser)
[Hereinafter Miser Testimony].
Even the survivors endure terrible suffering. Paul
Seckinger, a survivor of the Imperial Sugar explosion, was
---------------------------------------------------------------------------
burned over 80 percent of his body.
Three weeks after the explosion, Paul Seckinger
opened his eyes for the first time in his hospital bed,
looked up and smiled weakly at his mother.
Two days later, his mother says, doctors had to halt
surgery as they worked to repair the second- and third-
degree burns over 80 percent of Seckinger's body
because his lungs had filled with fluid and his blood
pressure plummeted. When his mother got back in to see
him, she saw terror in the eyes that held so much hope
the days before.
``His eyes were open real big and he was just looking
at me like, `Mom, help me.' It was very scary,'' says
Karen Seckinger, still shaken by her son's sudden
turn.\24\
---------------------------------------------------------------------------
\24\Russ Bynum, ``Burn victims in Georgia face long recovery,''
Statesboro Herald, March 6, 2008.
But severe burn victims often never completely recover.
Although not the result of a combustible dust explosion, a
recent New York Times story about burn victims five years after
the Station Nightclub fire in Warwick, RI, illustrates the
---------------------------------------------------------------------------
life-long suffering that burn victims must endure:
Savagely burned in the fire that incinerated the
Station nightclub here five years ago next Wednesday,
Linda Fisher has endured a dozen surgeries to salvage
her arms, her hands, her face.
Ms. Fisher inhaled so much smoke that anguishing
night that even now, she gets winded carrying a basket
of laundry. Her thick scars keep her from sweating
normally, and she has trouble distinguishing hot from
cold.
Ms. Fisher feels lucky.
``There are survivors who have no ears, eyes, nose,
hair,'' she said.\25\
\25\Abby Goodnough, ``5 Years After a Nightclub Fire, Survivors
Struggle to Remake Their Lives,'' New York Times, February 17, 2008.
---------------------------------------------------------------------------
Workers can be protected against combustible dust fires and explosions
The hazards of combustible dust explosions and how to
prevent them have been known for many decades. The National
Fire Protection Association currently has seven combustible
dust standards covering a variety of specific workplace and
methods of prevention. The first NFPA combustible dust standard
was issued in 1923.
NFPA Combustible Dust Standards:
NFPA 654, Standard for the Prevention of Fire and Dust
Explosions from the Manufacturing, Processing, and Handling of
Combustible Particulate Solids
NFPA 484 Standard for Combustible Metals
NFPA 61, Standard for the Prevention of Fires and Dust
Explosions in Agricultural and Food Processing Facilities
NFPA 664, Standard for the Prevention of Fires and
Explosions in Wood Processing and Woodworking Facilities 2007
Edition
NFPA 91, Standard for Exhaust Systems for Air Conveying of
Vapors, Gases, Mists, and Noncombustible Particulate Solids
2004 Edition
NFPA 655, Standard for Prevention of Sulfur Fires and
Explosions 2007 Edition
NFPA 120, Standard for Fire Prevention and Control in Coal
Mines 2004 Edition
The NFPA standards all have certain features in common:
Control and minimizing of fugitive dust emissions:
Minimizing the amount of dust that is allowed to escape into
the general environment is the best way to ensure that
dangerous amounts of dust do not accumulate. NFPA standards
include maintenance and operation of equipment in a manner that
minimizes the escape of dust.
They also include measures to minimize the accumulation of
dust, such as requirements that window ledges, girders, beams,
and other horizontal projections or surfaces have the tops that
are sharply sloped, or other provisions to minimize the deposit
of dust. NFPA 654 requires that ``Spaces inaccessible to
housekeeping shall be sealed to prevent dust accumulation.''
NFPA 484 has similar requirements.\26\
---------------------------------------------------------------------------
\26\According to the CSB investigation, dust accumulation above an
unsealed suspended ceiling was a major factor in the 2003 West
Pharmaceuticals explosion that killed 6 workers.
---------------------------------------------------------------------------
Housekeeping and safe clean-up of fugitive dust:
Ensuring that dust accumulations do not build up to dangerous
levels and that dust accumulations are cleaned up safely are
key to preventing explosions. Standards include, for example,
limits of dust accumulations to \1/32\nd of inch, control of
ignition sources, and prohibition of any measures that may
create dust clouds, such as ``vigorous sweeping or blowing down
with steam or compressed air'' unless all ignition sources are
completely eliminated.
Mitigation and minimization of the effect of
explosions: The human and material effects of explosions can be
minimized by ensuring that if small explosions do occur, they
are vented to reduce their intensity and that they are confined
so as not to cause more destructive secondary explosions.
Requirements include, for example, location of dust collectors
outside of occupied parts of the building, wide separation of
occupied parts of the plant, and explosion venting to minimize
the power of explosions.
Specific process or machinery-related precautions:
Although ignition sources are difficult to eliminate, measures
can be taken. Depending on the type of operation, standards
include specific instructions regarding foreign (sparking)
materials, belts, bearings, electrical equipment, static
electricity, hot work, hot surfaces, industrial trucks.
Management of Change: These standards require
measures to ensure that any change in process or materials do
not introduce new or increased hazards into the working
environment.
Worker Training: These standards address the need
for workers to be trained about operating and maintenance
procedures and emergency plans.
NFPA standards have proven to be highly effective in
preventing combustible dust explosions according to the
Chemical Safety Board.\27\ Compliance with the standards,
according to the CSB would have prevented the fatal explosions
that the CSB investigated in 2003:
---------------------------------------------------------------------------
\27\U.S. Chemical Safety and Hazard Investigation Board,
Investigation Report Report No. 2006-H-1, Combustible Dust Hazard
Study, November 2006.
The CSB found that if the requirements of NFPA 654
had been applied at West and CTA, the incidents would
have been prevented or significantly mitigated.
Specifically, CTA and West had not implemented NFPA
recommended practices, including analyzing their
processes for hazards, controlling fugitive dust
emissions and ignition sources, constructing buildings
to address dust hazards, and training employees. NFPA
654 requires, for example, that ``spaces inaccessible
to housekeeping shall be sealed to prevent dust
accumulation'' and that ``interior surfaces where dust
accumulations can occur shall be sealed and constructed
so as to facilitate cleaning and to minimize
combustible dust accumulations.'' However, at West dust
that accumulated above a suspended ceiling was
difficult to detect and remove.
Similarly, the CSB investigation revealed that the
CTA facility did not conform to NFPA 654, which
requires that facilities minimize horizontal surfaces
where dust can accumulate, equip buildings with
explosion venting, and clean surfaces ``in a manner
that minimizes the generation of dust clouds.''\28\
---------------------------------------------------------------------------
\28\H.R. 5522, The Combustible Dust Explosion and Fire Prevention
Act of 2008, Hearing before the Committee on Education and Labor, 110th
Congress, 2nd Session (2008) (Written testimony of William Wright)
[Hereinafter Wright Testimony].
In addition to the NFPA standards, in 1987, OSHA issued a
Grain Handling Facilities standard, part of which addressed
combustible dust hazards. That standard, which only applies to
Grain handling facilities also contains many of the elements
found in the NFPA standards, including:
Housekeeping specifications
Location of dust collectors outside the building
Inspections and maintenance of operating equipment
to reduce sparks and heat
Minimization of accumulated grain dust
Worker training
In 2003, OSHA published an evaluation of that standard.
OSHA found that not only had the standard saved lives, but had
also earned industry support. According to the Chemical Safety
Board's review of the evaluation:
[S]ince the standard had been instituted, grain
explosions were down 42 percent, injuries 60 percent,
and fatalities from grain explosions 60 percent. On
average, OSHA estimates that the Grain Handling
Facilities Standard has prevented five deaths per year.
The National Grain and Feed Association (NGFA) stated
that its industry had experienced ``an unprecedented
decline in explosions, injuries and fatalities at grain
handling facilities'' since 1980. Further, the NGFA
credited the standard with stimulating technological
advances in the design, layout, and construction of
grain handling facilities.
The OSHA standard-making process is not protecting workers
The Bureau of Labor Statistics reported that in the year
2005 there were over 5,700 workers, or 16 workers a day, killed
in the workplace. NIOSH estimates that almost 60,000 workers
die each year of occupational disease, many of which are caused
by exposure to toxic chemicals.\29\
---------------------------------------------------------------------------
\29\``Workers' Memorial Day--April 28, 2007,'' Morbidity and
Mortality Weekly Report, 56(16) (Apr. 27, 2007) at 389-393.
---------------------------------------------------------------------------
OSHA's standard-making process has broken down in recent
years. Dr. Frank Mirer of Hunter College, testifying at the
Workforce Protections Subcommittee hearing on April 24, 2007,
discussed the breakdown of OSHA's standard making process:
OSHA, since 2001, has checked out of the standards
business. Slow progress in earlier years has ground to
a halt and may even be moving stealthily backward. OSHA
has staff and other resources to set standards, but
that staff has not been permitted to operate. Since
2001, this Administration set one new chemical
standard, for carcinogenic chromium, under court order.
That standard actually permits employers to increase
exposure levels under some circumstances. Unions were
forced to sue to get improvements, and that litigation
still pends. Regarding employers' responsibility to pay
for required protective equipment like respirators and
wire mesh gloves, Labor Secretary Elaine Chao finally
committed to issuing a final rule in response to a
union lawsuit and a court ordered deadline. That rule
was promised by November 2007. The rulemaking record
was completed in 1999.\30\
---------------------------------------------------------------------------
\30\Have OSHA Standards Kept up With Workplace Hazards? Hearing
before the Subcommittee on Workforce Protections, 110th Congress, 1st
Session (2007) (written testimony of Frank Mirer, at 3) [Hereinafter
Mirer testimony].
Part of the problem is the administrative burden put on
OSHA. In order to issue standards, the agency must comply with
the Administrative Procedures Act which requires significant
public input. In addition, since the OSH Act was passed, laws
have been passed and Executive Orders have been issued adding
additional requirements to OSHA rulemaking. Executive Orders,
most particularly EO 12866 requires review by the White House
Office of Management and Budget. The Regulatory Flexibility Act
requires OSHA to address the potential impact of regulations on
small businesses. The Small Business Regulatory Enforcement
Fairness Act of 1996 which requires OSHA to convene a Small
Business Advocacy Review Panel which hears comments from small
entity representatives and reviews the draft proposed prepares
a written report. OSHA must review the report and make any
appropriate revisions to the rule.
All of these requirements add considerable time to the
development of OSHA standards. But experts in this area,
including Scott Schneider and Frank Mirer who testified in the
Subcommittee's April 24 OSHA standards hearing, have also
pointed out that one of the most important factors in the
slowdown of OSHA rulemaking is lack of political will. Frank
Mirer expanded on the political obstacles:
The first barrier to setting a new standard is
getting the Labor Department to recognize that
something needs to be done about a hazard. That's a
political leadership decision. Once there's a decision
to move forward, the task that causes the most delay is
gathering business data to estimate costs. But, OSHA
staff have figured out how to get that cost
information. After that, the barriers, and sources of
delay, are getting approval from the Office of
Management and Budget to put a standard on the agenda,
complete the small business (SBREFA) review, to release
a proposed standard, and to finally promulgate the
final standard. But, OMB is not a free agent. The same
President who appointed the Secretary of Labor and
Assistant Secretary of Labor for OSHA also appointed
the heads of OMB and the Small Business
Administration.\31\
---------------------------------------------------------------------------
\31\Have OSHA Standards Kept up With Workplace Hazards? Hearing
before the Subcommittee on Workforce Protections, 110th Congress, 1st
Session (2007) (written testimony of Frank Mirer) [Hereinafter Mirer
testimony].
Scott Schneider, testifying at the Workforce Protections
subcommittee hearing on April 24, 2007, also cited lack of
political will as a major cause of the failure of OSHA to issue
standards for the past six years.\32\
---------------------------------------------------------------------------
\32\Have OSHA Standards Kept up With Workplace Hazards? Hearing
before the Subcommittee on Workforce Protections, 110th Congress, 1st
Session (2007) (written testimony of Scott Schneider) [Hereinafter
Schneider Testimony].
---------------------------------------------------------------------------
OSHA standards protect workers from occupational disease and injury
One of the most important responsibilities that Congress
gave OSHA under the Occupational Safety and Health Act is the
issuance of safety and health standards. Congress declared in
passage of the Act that its ``purpose and policy'' was ``to
assure so far as possible every working man and woman in the
Nation safe and healthful working conditions . . . by providing
for the development and promulgation of occupational safety and
health standards.''
The need for an interim standard
The Committee has determined that exposure to the hazards
of combustible dust explosions and fires presents the sort of
grave danger to workers that warrants immediate action. The
Chemical Safety Board combustible dust study found that
``combustible dust explosions are a serious hazard in American
industry, and that existing efforts inadequately address this
hazard.'' The CSB identified 281 combustible dust
incidentsbetween 1980 and 2005 that killed 119 workers and injured 718,
and an addition 67 combustible dust explosions since 2005, including
the Imperial Sugar explosion that killed 13 workers. Combustible dust
hazards have long been recognized. The first NFPA combustible dust
standard was issued in 1923, 85 years ago. Despite this grave and well
recognized hazard, OSHA has failed to develop a comprehensive standard
that would protect workers.
The Wilson Amendment in the nature of a substitute that was
defeated by a voice vote would have allowed OSHA to wait for
the outcome of the Imperial Sugar investigation and findings
from the combustible dust NEP before deciding on whether to
move forward with a standard. Given all that is known about the
causation and prevention of combustible dust explosions,
however, the Committee believes that it is highly unlikely that
anything profoundly new about the nature, causation or
prevention of combustible dust explosion would be gained by
further delay.
The Committee also believes that evidence from recent
incidents and the CSB reports show that compliance assistance
efforts such as OSHA's Safety and Health Information Bulletin,
website and other materials developed by OSHA are useful tools,
but are not sufficient to protect workers from the threat of
combustible dust explosions.
Furthermore, the Committee also does not feel that the 17
existing OSHA standards being used by OSHA to enforce
combustible dust safety violations are adequate to effectively
address the prevention of combustible dust explosions and fires
in American industry. H.R. 5522 therefore requires OSHA to
issue an Interim Final Standard within 90 days of enactment to
be followed by a final standard that would be promulgated
within 18 months.
The interim standard would be required to include hazard
assessment, a written program, engineering and administrative
controls, specifications for housekeeping and control of
ignition sources, worker participation and worker training.
These requirements would codify many of the measures that OSHA
is now undertaking under its combustible dust NEP. It would
apply to all workplaces where there is a potential for
combustible dust explosions except those workplaces already
covered under OSHA's Grain Handing Facilities Standard (29 CFR
1910.272.)
The interim regulation is not an occupational safety and
health standard as that term is defined in section 3(8) of the
Occupational Safety and Health Act of 1970 and must be adopted
notwithstanding any other provision of law. The Secretary of
Labor has previously recognized in promulgating a standard
regulating hazardous waste operations the distinction between
an interim regulation and an occupational safety and health
standard is legally significant because it means that the
procedural requirements of section 6 of the OSH Act do not
apply to the promulgation of the interim final regulation. Nor,
as the Secretary has previously recognized in publishing an
interim final regulation governing hazardous waste operations,
do the notice and comment provisions of the Administrative
Procedures Act apply.
The Committee relied upon these precedents when it directed
the Secretary of Labor to publish an interim final regulation
governing lead exposure in the construction industry.
The Committee intends that the Secretary rely on similar
procedures to publish an interim final regulation governing
combustible dust explosions within three months. These
procedures have recently been upheld by OSHRC the Occupational
Safety and Health Review Commission (OSHRC) in the Manganas
Painting Co, Inc decision. OSHRC agreed with the Secretary of
Labor's assessment of Congressional intent which cited:
The preamble to the lead in construction standard
that ``Congress . . . did not impose any procedural
requirements that must be followed'' and that Congress
intended that ``the Secretary need not follow the
procedural requirements of the OSH Act or the APA
[Administrative Procedure Act, 5 U.S.C. Sec. 553].'' 58
Fed. Reg. at 26,591.\33\
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\33\Secretary of Labor v. Manganas Painting Company Inc, OSHRC
Docket No. 94-0588 (March 23, 2007).
While the Secretary is authorized to publish the interim
regulation without the notice and comment procedures required
by section 6 of the OSH Act, it is the Committee's expectation
that OSHA will work closely with the National Fire Protection
Association, the International Code Council, affected industry
and labor representatives and other experts in developing the
interim final combustible dust standard.
The final standard
H.R. 5522 requires OSHA, within 18 months of enactment, to
issue a permanent standard regulating worker exposure to
combustible dust explosion and fire hazards in compliance with
section 6(b) of the Occupational Safety and Health Act (OSH
Act). The Committee is confident that this standard can be
issued within the timeframe allotted.
H.R. 5522 does not exempt OSHA from the requirements of
section 6 of the OSH Act that Congress and the courts have
established to ensure that OSHA standards reflect the best
science available, or that the standards are technologically
and economically feasible. In addition, regulatory oversight
laws, including the Administrative Procedures Act, the Small
Business Regulatory Enforcement Fairness Act (SBREFA), the
Regulatory Flexibility Act, the Paperwork Reduction Act, or
Executive Order 12866 are flexible enough to provide for
expedited action in emergency situations like these.
Eighteen months provides adequate time for OSHA to develop
the evidence and findings necessary to issue a final standard.
Extensive studies, consensus standards and investigations exist
to provide OSHA core information needed to develop a standard.
In order to issue a standard under Section 6(b) of the Act,
OSHA also has a number of procedural requirements that must be
satisfied. Again, because of the emergency nature of this
problem, OSHA will be able to meet those requirements within
the 18 month timeframe. SBREFA,\34\ the Regulatory Flexibility
Act,\35\ Executive Order 12866 and the Paperwork Reduction Act
contain flexible provisions for waivers, delay or acceleration
of their requirements under emergency conditions or other
special circumstances. The Committee expects OSHA, the Small
Business Administration, the Office of Management and Budget,
and other agencies involved in the regulatory process to fully
utilize whatever actions are necessary and permitted within
relevant laws and executive orders affecting the regulatory
process to ensure that this mandated Congressional deadline is
met.
---------------------------------------------------------------------------
\34\P.L. 104-121. Small Business Regulatory Enforcement Fairness
Act of 1996.
\35\P.L. 96-354. Regulatory Flexibility Act of 1980, as amended.
---------------------------------------------------------------------------
Experts confirm that OSHA can issue standards much faster
than the agency has acted over the past several years. Frank
Mirer expressed confidence that OSHA should be capable of
issuing standards much faster than it currently does, even
starting from scratch.\36\
---------------------------------------------------------------------------
\36\Mirer Testimony at 5.
---------------------------------------------------------------------------
Adam Finkel, Sc.D., CIH, Professor of Environmental and
Occupational Health at the UMDNJ School of Public Health, and a
visiting professor of public affairs at the Woodrow Wilson
School at Princeton University, submitted testimony for the
record following the April 24 hearing on OSHA standards,
stating that despite the many requirements for OSHA to invite
participation by stakeholders and respond substantively to
their comments, standards can be completed ``cleanly and rather
quickly.'' Finkel is the former Director of Health Standards
for OSHA.
In one 18-month period of activity (late 1996 to
early 1998)--OSHA promulgated three major final health
standards--those for 1,3-butadiene, methylene chloride,
and generic respiratory protection--and defended them
in Congressional oversight hearings and court
challenges, without a single provision being
substantively weakened following any of this
scrutiny.\37\
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\37\Have OSHA Standards Kept up With Workplace Hazards? Hearing
before the Subcommittee on Workforce Protections, 110th Congress, 1st
Session (2007), Letter from Dr. Adam Finkel to Rep. Lynn Woolsey (May
8, 2007).
---------------------------------------------------------------------------
History of Congressional intervention in OSHA rulemaking
Congress has a long history of mandating OSHA regulation to
protect workers when the Agency fails to act on its own. HR
5522 continues the Congress's tradition of ensuring that OSHA
acts promptly when faced with evidence that American workers
face grave dangers and delay will result in needless illness
and death. In 1986, as part of the Superfund Amendments and
Reauthorization Act (SARA), Congress mandated the issuance an
``interim'' standard for Hazardous Waste Operations and
Emergency Response within 60 days and a final standard within
one year of SARA's enactment.\38\ In 1990, as part of the Clean
Air Act Amendments, Congress required OSHA to issue the Process
Safety Management standard within one year. Congress also
included directions on the content of the standard.\39\ In
1991, Congress ordered OSHA to issue the final Bloodborne
Pathogens Standard by a certain date, and stated that if that
deadline was not met, the previously published proposed
standard would take effect.\40\ In 1992, Congress mandated OSHA
to issue the Lead in Construction standard and required the new
standard to be ``as protective'' as the U.S. Department of
Housing and Urban Development's worker protection guidelines
for identification and abatement of lead based paint in certain
housing. The standard was issued in 1993.\41\ Finally, in 2000,
Congress required OSHA issue an update to the Bloodborne
Pathogens standard, requiring safer syringes and sharps.\42\
That standard was issued in 2001.
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\38\P.L. 99-499. Superfund Amendments and Reauthorization Act of
1986, Title I Sec. 126 a-f (Oct. 26, 1986).
\39\P.L. 101-549. Title III, Sec. 304 (Nov. 15, 1990).
\40\P.L. 102-170. Departments of Labor, Health and Human Services,
and Education, and Related Agencies Appropriations Act, Sec. 100
(1992).
\41\P.L. 102-550. This interim final rule was mandated by, and
issued under the exclusive authority of, title X, subtitle C, sections
1031 and 1032, Worker Protection, of the Housing and Community
Development Act of 1992.
\42\P.L. 106-430. Needlestick Safety and Prevention Act.
---------------------------------------------------------------------------
Some OSHA experts feel that Congress must take a much more
active role in encouraging OSHA to issue standards that protect
workers' health and safety; Scott Schneider, who testified at
the April 2007 standards hearing argued in favor of Congress
setting strict time limits for OSHA to issue standards:
Congress can set time limits for OSHA to consider and
then issue proposals and final rules. In the past
Congress has mandated that OSHA issue rules within a
six-month period and the agency has done so (e.g. lead,
hazardous waste). Congress should give OSHA a limited
time, say four months, to consider any petition for new
standards and require the agency to publish a response
in the Federal Register as to its reasons for accepting
or denying the petition. The burden should be on the
agency to show why a standard should not be issued.
Once committed to a rule making, the agency would be
given additional deadlines to meet to ensure that rules
are issued in a timely manner, say no more than three
years. Congress would have to provide additional
funding for OSHA dedicated to standard setting in order
for it to meet these deadlines.\43\
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\43\Schneider Testimony at 5.
Due to the high number of deaths and serious injuries
caused by combustible dust explosions and the ready
availability of means to prevent worker exposure, HR 5522
requires OSHA to take swift action to protect workers.
SECTION-BY-SECTION ANALYSIS
Section 1. Short title
Provides that the Short Title is the ``Combustible Dust
Explosion and Fire Prevention Act of 2008.''
Section 2. Findings
This section declares that an emergency exists concerning
worker exposure to combustible dust explosions and fires and
that a standard is urgently needed to protect workers. This
section establishes that there is strong evidence documenting
the hazards of combustible dust explosions as well as the
feasibility and effectiveness of measures to prevent
combustible dust explosions. Additionally, OSHA has taken no
action to begin the development of a standard and has not taken
other significant action to protect workers.
Section 3. Issuance of standard on combustible dust
Section 3(a)(1). Requires the Secretary of Labor to issue
an interim final standard regulating combustible dusts within
not later than 90 days after enactment. Defines the scope of
the interim standard and states that it shall not apply to
processes already covered by OSHA's standard on grain handling
facilities.
Section 3(a)(2)(A). States that the interim final standard
must require hazard assessments to identify, evaluate and
control combustible dust hazards.
Section 3(a)(2)(B). States that the interim final standard
must require employers to develop a written program which
includes plans for hazardous dust inspection, testing,
housekeeping, and control, with established frequency and
methods.
Section 3(a)(2)(C). States that the interim final standard
must require engineering, administrative controls and operating
procedures.
Section 3(a)(2)(D). States that the interim final standard
must require housekeeping to control accumulation of
combustible dust.
Section 3(a)(2)(E). States that the interim final standard
must require employee participation in hazard assessment,
development of and compliance with the written program, and
other elements of hazard management.
Section 3(a)(2)(F). States that the interim final standard
must require the provision of written safety and health
information and training to employees, including hazard
communication information, labeling, and training.
Section 3(a)(3). Exempts the interim final standard from
procedural requirements normally mandated for a permanent
standard.
Section 3(a)(4). Requires the interim final standard to
take effect 30 days after issuance, have the legal effect of an
OSHA standard, and remain in effect until a final standard
becomes effective.
Section 3(b)(1). Mandates OSHA to issue a final standard
regulating combustible dust hazards not later than eighteen
months from the date of enactment.
Section 3(b)(2)(A). Requires the final standard to include
the scope described in Section 3(a)(1).
Section 3(b)(2)(B). States that the final standard must
contain the worker protection provisions in Section 3(a)(2) of
the interim final standard.
Section 3(b)(2)(C). States that the final standard must
require procedures for managing change of dust producing
materials, technology, equipment, staffing, and procedures.
Section 3(b)(2)(D). States that the final standard must
require safe building design.
Section 3(b)(2)(E). States that the final standard must
require provisions for explosion protection.
Section 3(b)(2)(F). Requires OSHA to review and adopt
appropriate and relevant provisions of National Fire Protection
Association combustible dust standards.
Section 4. Revision of the Hazard Communication Standard
Section 4(a). Requires OSHA to revise the definition of
``physical hazard'' in the Hazard Communication Standard to
include ``a combustible dust'' within six months
Section 4(b). States that changes in the Hazard
Communication Standard shall remain in effect until OSHA
further revises the standard.
Section 4(c). States that the modification of the Hazard
Communication Standard will take effect within 30 days after
publication.
VI. EXPLANATION OF AMENDMENTS
None.
VII. APPLICATION OF LAW TO THE LEGISLATIVE BRANCH
Section 102(b)(3) of Public Law 104-1, the Congressional
Accountability Act, requires a description of the application
of this bill to the legislative branch. H.R. 5522 has no direct
application to the legislative branch.
VIII. UNFUNDED MANDATE STATEMENT
Section 423 of the Congressional Budget and Impoundment
Control Act (as amended by Section 101(a)(2) of the Unfunded
Mandates Reform Act, P.L. 104-4) requires a statement of
whether the provisions of the reported bill include unfunded
mandates. (The attached CBO letter addresses this issue.)
IX. EARMARK STATEMENT
H.R. 5522 does not contain any congressional earmarks,
limited tax benefits, or limited tariff benefits as defined in
clause 9(d), 9(e) or 9(f) of rule XXI.
X. ROLLCALL
None.
XI. STATEMENT OF OVERSIGHT FINDINGS AND RECOMMENDATIONS OF THE
COMMITTEE
In compliance with clause 3(c)(1) of rule XIII and clause
2(b)(1) of rule X of the Rules of the House of Representatives,
the Committee's oversight findings and recommendations are
reflected in the body of this report.
XII. NEW BUDGET AUTHORITY AND CBO COST ESTIMATE
With respect to the requirements of clause 3(c)(2) of rule
XIII of the Rules of the House of Representatives and section
308(a) of the Congressional Budget Act of 1974 and with respect
to requirements of clause 3(c)(3) of rule XIII of the Rules of
the House of Representatives and section 402 of the
Congressional Budget Act of 1974, the Committee has received
the following estimate for H.R. 5522 from the Director of the
Congressional Budget Office:
U.S. Congress,
Congressional Budget Office,
Washington, DC, April 17, 2008.
Hon. George Miller,
Chairman, Committee on Education and Labor,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 5522, the
Combustible Dust Explosion and Fire Prevention Act of 2008.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Mindy Cohen.
Sincerely,
Robert A. Sunshine
(For Peter R. Orszag, Director).
Enclosure.
H.R. 5522--Combustible Dust Explosion and Fire Prevention Act of 2008
H.R. 5522 would require the Secretary of the Department of
Labor (DOL) to issue regulations intended to protect workers
from combustible dust explosions and fires. The bill would
require the Secretary to issue interim standards and a final
standard no later than 90 days and 18 months after enactment,
respectively.
Estimated costs to the Federal Government: Based on
information provided by the Occupational Safety and Health
Administration (OSHA) and other safety analysts, CBO estimates
that implementing H.R. 5522 would cost $1 million in fiscal
year 2009 and $41 million over the 2009-2013 period. These
costs consist of $1 million in 2009 for economic and
feasibility studies to support the development of the final
standard, and $10 million a year--about a five percent increase
in OSHA's enforcement workload--beginning in 2010 for
enforcement of the final standard. Enacting the bill would not
affect revenues or direct spending.
Impact on state, local, and tribal governments: Under
current law, state laws governing occupational and health
issues are preempted if they deal with the same subject matter
regulated by OSHA. At least two states have implemented or are
in the process of implementing standards to prevent combustible
dust explosions. The standards in those states would be
preempted by regulations promulgated under H.R. 5522. In order
to maintain their own standards, the states would be required
to demonstrate to OSHA that the state standards will be at
least as effective as the standards promulgated by OSHA. If the
state standards are determined to be less effective, the
federal standards would apply. Preempting such state standards
would be an intergovernmental mandate as defined in the
Unfunded Mandates Reform Act (UMRA). Because the preemption
would simply prohibit the application of state law, CBO
estimates that the costs of the mandate would not be
significant and would not exceed the threshold established by
UMRA ($68 million in 2008, adjusted annually for inflation).
States may enforce federal job safety and health standards
if they do so under an agreement with OSHA; currently, 26
states operate such programs. Those states might incur costs to
administer and enforce the new standards that OSHA would be
required to promulgate under the bill. However, those costs
would be incurred as a result oftheir voluntary participation
in a federal program, and half of those costs would be
reimbursed through matching grants from the federal government
under an existing program.
Impact on the private sector: By requiring OSHA to issue
rules regulating combustible dust hazards, the bill would
impose private-sector mandates on employers at industrial
establishments that manufacture, process, or otherwise handle
materials that produce combustible dusts. The cost of those
mandates is uncertain because it would depend on the rules to
be established under the bill. Additionally, some employers
already comply with safety requirements or voluntary industry
standards that may overlap to some extent with the rules that
would be developed by OSHA to address combustible dust hazards.
Therefore, CBO cannot determine whether the aggregate costs of
mandates in the bill would exceed the annual threshold
established in UMRA for private-sector mandates ($136 million
in 2008, adjusted annually for inflation).
Estimate prepared by: Federal costs: Mindy Cohen; Impact on
state, local and tribal governments: Lisa Ramirez-Branum;
Impact on the private sector: MarDestinee Perez.
Estimate approved by: Keith J. Fontenot, Deputy Assistant
Director for Health and Human Resources, Budget Analysis
Division.
XIII. STATEMENT OF GENERAL PERFORMANCE GOALS AND OBJECTIVES
In accordance with clause 3(c) of House rule XIII, the goal
of H.R. 5522 is to provide basic health and safety protections
for workers exposed to combustible dust fires and explosions.
XIV. CONSTITUTIONAL AUTHORITY STATEMENT
Under clause 3(d)(1) of rule XIII of the Rules of the House
of Representatives, the Committee must include a statement
citing the specific powers granted to Congress in the
Constitution to enact the law proposed by H.R. 5522. The
Committee believes that the amendments made by this bill, which
direct OSHA to issue an OSHA standard regulating worker
exposure to combustible dust are within Congress' authority
under Article I, Section 8, Clause 3 of the Constitution of the
United States.
XV. COMMITTEE ESTIMATE
Clause 3(d)(2) of rule XIII of the Rules of the House of
Representatives requires an estimate and a comparison of the
costs that would be incurred in carrying out H.R. 5522.
However, clause 3(d)(3)(B) of that rule provides that this
requirement does not apply when the Committee has included in
its report a timely submitted cost estimate of the bill
prepared by the Director of the Congressional Budget Office
under section 402 of the Congressional Budget Act.
XVI. COMMITTEE CORRESPONDENCE
None.
XVII. MINORITY VIEWS
MINORITY VIEWS ON H.R. 5522
INTRODUCTION
Earlier this year, the community of Port Wentworth, Georgia
suffered something no community should have to endure. As the
result of an explosion at the Imperial Sugar Company refinery,
a number of workers lost their lives, while many others
sustained serious injuries. In the wake of that accident,
Chairman George Miller and Representative Barrow moved quickly
to propose legislation. While it is understandable, and even
commendable, for Congress to respond swiftly in the aftermath
of such a tragic accident, history has shown that legislating
in this manner rarely produces sound policy. Committee
Democrats have expedited the consideration of legislation
introduced in response to the accident, without having the
benefit of important information obtained as a result of the
federal government's investigation of the accident. We are
concerned that such haste will result in the creation of an
ineffective and unenforceable safety standard that will
negatively impact many of our nation's workplaces.
Committee Republicans have a strong and long held
commitment to workplace safety. Key toward accomplishing that
goal is ensuring that the agency with regulatory jurisdiction
is able to undertake a robust rulemaking process in order to
create enforceable and effective rules. The danger of
combustible dust in the workplace is a serious concern, and
Committee Republicans are committed to helping the Occupational
Safety and Health Administration (``OSHA'') achieve
comprehensive safety standards that will ultimately improve
worker safety and health. H.R. 5522, the Combustible Dust
Explosion and Fire Prevention Act of 2008, falls far short of
accomplishing that goal; and therefore, Committee Republicans
must oppose the legislation in its current form.
BACKGROUND
Imperial Sugar Company refinery explosion
On February 7, 2008, an explosion occurred at an Imperial
Sugar Company refinery in Port Wentworth, Georgia. As a result
of the explosion, thirteen workers have died and many other
workers suffered extensive burns. In the immediate aftermath of
the incident, the local fire chief took command of the scene.
The following day, once the fire was under control, the federal
Bureau of Alcohol Tobacco and Firearms (ATF) took command of
the site. Upon making an initial determination that the blast
was not caused by criminal activity, the ATF turned the site
over to OSHA on February 15, 2008. This sequence of authority
is not unusual for an accident of this nature.
Upon taking control of the site, OSHA immediately commenced
its investigation into the cause of the explosion. By law, OSHA
has six months to investigate the accident and, if appropriate,
assess penalties to any party determined to have violated the
Occupational Safety and Health Act (``OSH Act'' or the
``Act'').\1\ OSHA began subpoenaing documents from the company
immediately after the agency took over the site, and has been
actively engaged in the investigation from the outset. OSHA is
the only agency with the statutory authority to penalize the
company for violations of workplace safety law; if criminal
behavior is found, OSHA may refer the matter to the Department
of Justice for criminal prosecution.
---------------------------------------------------------------------------
\1\29 U.S.C. Sec. 651 et seq.
---------------------------------------------------------------------------
The OSH Act and workplace safety regulation
Since its enactment in 1970, the OSH Act has fostered safe
and healthy working environments through standards-setting,
employer and worker education and training, and hazard
elimination. The Act contains specific provisions intended to
address workplace hazards through the process of rulemaking.
Throughout its history, the OSHA Act's standard-setting
processes have been governed foremost by the Administrative
Procedures Act (APA). The APA generally requires a federal
agency to develop and draft proposed regulations; issue
proposed rules and regulations via a transparent process that
allows for comment and input from affected stakeholders; and
incorporate appropriate stakeholder input in the publication of
a final rule.\2\ In addition to the requirements of the APA,
OSHA must ensure that its proposed regulations adhere to, inter
alia, guidelines specified in Executive Orders, the Paperwork
Reduction Act,\3\ the Regulatory Flexibility Act,\4\ the Small
Business Regulatory Enforcement Fairness Act,\5\ and,
ultimately, the Congressional intent of the underlying
authorizing statute.\6\
---------------------------------------------------------------------------
\2\See 5 U.S.C. 5 et seq.
\3\See 44 U.S.C. 3501 et seq.
\4\See 5 U.S.C. 601 et seq.
\5\See 5 U.S.C. 801 et seq.
\6\Moreover, as a matter of practice, in recent years it has become
a near-certainty that one or more stakeholders affected by a rule will
pursue a legal challenge to OSHA's final regulation. These challenges
may result in a rule being upheld in its entirety; modified in some
form or fashion by the courts; or struck down in its entirety. Once the
final disposition of any legal challenges have been reached, a final
rule is either implemented or revised according to court direction and
subsequently administered by the Secretary of Labor through OSHA.
---------------------------------------------------------------------------
Combustible dust and the OSH Act
In sufficient concentrations, almost any type of dust found
in the workplace can explode. In order for a combustible dust
explosion to occur, five conditions must be present:
combustible dust, an ignition source, oxygen, a dispersion of
dust particles, and confinement of the dust cloud. Industries
ranging from agriculture to metal finishing have the potential
to experience dust explosions. According to a U.S. Chemical
Safety and Hazard Investigation Board (``CSB'') report, dust
was determined to have caused 281 fires and explosions over the
last 25 years.\7\
---------------------------------------------------------------------------
\7\See U.S. Chemical Safety and Hazard Investigation Board,
Investigation Report: Combustible Dust Hazard Study, Report No. 2006-H-
I (November 2006).
---------------------------------------------------------------------------
To regulate the combustible dust hazard across industries,
OSHA has used seventeen general standards currently in place
under the OSH Act. During his testimony before the Committee,
Assistant Secretary for Occupational Safety and Health Edwin G.
Foulke stated that the standards in place provide appropriate
and adequate regulatory protection against combustible dust
accidents, including the fire protection, ventilation and
electrical standards.\8\
---------------------------------------------------------------------------
\8\See Appendix A, Testimony of The Honorable Edwin G. Foulke, Jr.,
Committee on Education and Labor, ``H.R. 5522, The Combustible Dust
Explosion and Fire Prevention Act of 2008,'' Wednesday, March 12, 2008.
---------------------------------------------------------------------------
These standards also include the OSH Act's ``General Duty''
Clause; its housekeeping standard, and its hazard communication
regulation. The following three standards are of particular
note:
General Duty Clause. The General Duty Clause
(section 5(a)(1) of the OSH Act) requires that an employer must
abate any hazard in the workplace which a reasonable employer
in that industry knows or should know about, including those
related to dust.
Housekeeping Standard. The OSHA Housekeeping
Standard requires that employers maintain facilities in a
clean, orderly, and sanitary condition.\9\ While the standard
does not refer to dust specifically, it can form the basis for
citation when dust accumulation leads to an explosion.
---------------------------------------------------------------------------
\9\29 CFR 1910.22.
---------------------------------------------------------------------------
The Hazard Communication (``HazCom'') Standard.
OSHA's HazCom Standard requires that businesses monitor and
inform employees of the hazards associated with certain
materials in the workplace. The HazCom standard requires that
every affected employer establish a program to inform employees
of these hazards. The program must have five main components:
(1) Written Hazard Communication Program documentation; (2)
identification and inventory of hazardous chemicals; (3)
maintenance of material safety data sheets (MSDS) on the
identified hazards; (4) labeling of hazardous materials with
their name and hazard; and (5) training of employees on the
standard, safety information, labeling and protective measures.
OSHA points specifically to the HazCom standard to
demonstrate how employers should be aware of dust issues.
Within the HazCom standard, employers are required to maintain
MSDSs that list the hazards, including the combustibility, of
materials brought onto a worksite. Moreover, OSHA has the
authority to cite employers for failing to comply with these
standards. In many cases, the agency does so after a
combustible dust accident investigation concludes that the
HazCom standard was, in fact, violated.
The Chemical Safety and Hazard Investigation Board (CSB)
The CSB is an independent federal agency charged with
investigating industrial chemical accidents and their causes.
While the CSB does not the authority to issue fines or
citations, it does make recommendations to businesses,
regulatory agencies such as OSHA and the Environmental
Protection Agency (EPA), industry organizations, and labor
representatives. According to its mission statement, the CSB
was designed by Congress to be non-regulatory and independent
of other agencies so that its investigations may, where
appropriate, review the effectiveness of regulations and
regulatory enforcement.
In November 2006, the CSB completed an investigative report
of combustible dust.\10\ The report outlined the history of
industrial dust explosions, citing 119 fatalities over a 25-
year period. One key finding of the report noted OSHA's success
in dramatically reducing the risk of grain dust explosions by
promulgating a grain standard in 1986.
---------------------------------------------------------------------------
\10\See U.S. Chemical Safety and Hazard Investigation Board,
Investigation Report: Combustible Dust Hazard Study, Report No. 2006-H-
1 (November 2006).
---------------------------------------------------------------------------
OSHA ACTIVITY RELATING TO COMBUSTIBLE DUST
Contrary to assertions made by the Majority, OSHA has not
ignored the potential hazards related to combustible dust.
Indeed, OSHA recognized the need to address combustible dust in
a July 2005 Safety and Health Information Bulletin (SHIB) that
emphasized the hazards of combustible dust, controlling dust in
the workplace, and the need for appropriate training.
Additionally, in October 2007 OSHA responded to the November
2006 CSB report by implementing a National Emphasis Program
(NEP) regarding combustible dust. The NEP includes the
identification of facilities for awareness of dust hazards
along with comprehensive compliance inspections.\11\ More
recently, in the wake of the Port Wentworth, Georgia incident,
OSHA sent a ``high hazard'' alert to 30,000 employers focusing
on the issue of combustible dust and outlining measures that
should be taken to maintain clean workplaces.
---------------------------------------------------------------------------
\11\The Imperial Sugar Company would have eventually received an
inspection under the site-specific-targeting of the NEP, but had not
received an OSHA inspection in the prior seven years. Prior to the
accident, the company's low injury and illness rate made it a facility
that did not qualify as a high hazard.
---------------------------------------------------------------------------
OSHA continued to highlight the dangers related to
combustible dust when it reissued the NEP on March 12, 2008,
and consolidated the regulatory and educational information
regarding dust into a user-friendly webpage.\12\ During
testimony provided at the Full Committee hearing on H.R. 5522,
Assistant Secretary Foulke further outlined the activities OSHA
has taken to address combustible dust hazards:
---------------------------------------------------------------------------
\12\See http://www.osha.gov/dsg/combustibledust/index.html.
First, all Compliance Safety and Health Officers
(CSHOs) receive training on OSHA safety standards,
including those related to combustible dust.
Additionally, for the past three years, the OSHA
Training Institute has included a half day of training
on the hazards of combustible dust in its course on
Process Safety management. To date, 323 compliance
officers have received this additional half-day of
training on combustible dust hazards.
A three and a half day course, Combustible Dust
Hazards and Controls, which is based upon the NEP, has
also been developed. Forty compliance officers were
trained during the first session of this course held
the week of December 3, 2007. This training is ongoing,
with the next session scheduled in spring 2008, and at
least one session is planned annually thereafter.
National Office staff has provided training and
education on the subject of combustible dust in other
venues. In June 2006, we delivered a presentation to an
international audience of fire production professionals
at the National Fire Protection Association's World
Safety conference and Expo. In April 2007, OSHA staff
provided training sessions to its consultation staff
from throughout the country at the annual consultation
conference. In January 2008, OSHA provided assistance
to Maryland Occupational Safety and Health (MOSH) in
training 70 MOSH compliance personnel in combustible
dust hazards. Our Regional Offices have either
retrained, or are planning to train,CSHOs in the
Regions on combustible dust hazards. For example, OSHA's Region I
conducted training on the NEP in its Area Offices early this year.\13\
---------------------------------------------------------------------------
\13\Letter from Edwin G. Foulke, Jr. responding to questions for
the record from Workforce Protections Subcommittee Chair Woolsey, March
27, 2008.
---------------------------------------------------------------------------
H.R. 5522, THE COMBUSTIBLE DUST EXPLOSION AND FIRE PREVENTION ACT OF
2008
In the wake of the Imperial Sugar Company refinery
accident, Chairman George Miller and Representative John Barrow
introduced H.R. 5522. The bill would direct OSHA to immediately
undertake a rulemaking regulating all forms of combustible
dust, and to expedite the formulation of final regulations in
what amounts to an unusually compressed timeframe. More
specifically, H.R. 5522 would require OSHA to:
Issue an interim final combustible dust
standard within 90 days that would include measures to
minimize hazards associated with dust through improved
housekeeping, engineering controls, building design,
explosion protection and worker training;
Issue a final standard relating to
combustible dust within eighteen months. The interim
standard would remain in effect until the final
standard is issued; and
Revise the Hazard Communication Standard to
include combustible dust.
COMMITTEE CONSIDERATION OF H.R. 5522
The Committee on Education and Labor held a legislative
hearing on H.R. 5522 on March 12, 2008. At the hearing, several
technical and policy concerns with the legislation were noted
in testimony provided by the Republican witness and Assistant
Secretary Foulke.
The Committee held a markup of H.R. 5522 on Wednesday April
9, 2008 during which an amendment in the Nature of a
Substitute, offered by Representative Woolsey, was adopted by
voice vote. Representative Joe Wilson offered an amendment in
the Nature of a Substitute that was rejected by voice vote. The
Committee then favorably reported H.R. 5522, as amended, by
voice vote.
REPUBLICAN VIEWS
H.R. 5522 was introduced in direct response to the accident
at the Imperial Sugar Company refinery in Port Wentworth,
Georgia; the bill's sponsors have made that abundantly clear.
It seems ludicrous, therefore, that Congress would not wait for
the findings of OSHA's investigation prior to taking
legislative action. Committee Republicans believe that
Congress, at a minimum, should allow for OSHA to complete its
investigation of the accident before enacting legislation,
taking into consideration all of the variables related to the
accident. This view is embodied in the substitute amendment
offered during the Committee's consideration of the bill by
Representative Joe Wilson. Unfortunately, the Majority defeated
Representative Wilson's common-sense amendment and instead,
insisted on proceeding with hastily-written legislation that
would likely result in an ineffective and unenforceable
regulation.
OSHA's response to the CSB report
To support its calls for a combustible dust regulation, the
Majority cites OSHA's, so-called ``failure'' to implement the
recommendations of the CSB's report on combustible dust. In the
report, the CSB recommended that OSHA:
Issue a standard designed to prevent
combustible dust fires and explosions in general
industry;
Revise the Hazard Communication Standard;
Communicate to the United Nations Economic
Commission for Europe (UNECE) the need to amend the
Globally Harmonized System (GHS);
Provide training to inspectors through the
OSHA Training Institute (OTI) on recognizing and
preventing combustible dust explosions;
Conduct a National Special Emphasis Program
(SEP) on combustible dust hazards in general industry;
Include in the SEP an outreach program
focused on the information in the Safety and Health
Information Bulletin (SHIB), ``Combustible Dust in
Industry: Preventing and Mitigating the Effects of Fire
and Explosions.''
As evidenced through testimony and letters submitted for
the record for the Full Committee hearing on March 12, 2008,
OSHA already has implemented the majority of the CSB
recommendations in a variety of ways.
In addition, OSHA continues to examine the CSB's
recommendation of the need for a combustible dust standard. To
be clear, OSHA has not dismissed the idea of a regulation.
Indeed, in his response to questions posed during the hearing,
Assistant Secretary Foulke stated:
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 and 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 look 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.\14\
---------------------------------------------------------------------------
\14\Testimony of the Honorable Edwin G. Foulke, Jr., Committee on
Education and Labor, ``H.R. 5522, the Combustible Dust Explosion and
Fire Prevention Act of 2008,'' Wednesday, March 12, 2008.
It appears, therefore, that OSHA has not ruled out the
possibility of promulgating a combustible dust regulation. As
such, it is our view that if a regulation is warranted, the
agency should be given a reasonable amount of time to craft a
credible, effective, and enforceable rule.
Another reason OSHA should not rush to write a combustible
dust standard was, in fact, highlighted in the CSB report--that
being the extent to which any rulemaking would affect a large
number of highly diverse of industries.\15\ Given the
inevitable impact on such a wide range of America's industry,
OSHA must have the opportunity to decide if creating a one-
size-fits-all rule is the most effective approach to address
this complex and important subject.
---------------------------------------------------------------------------
\15\See Appendix D, Investigation Report: Combustible Dust Hazard
Study, Report No. 2006-H-1 (November 2006).
---------------------------------------------------------------------------
H.R. 5522 creates a one-size-fits-all regulation
As currently written, H.R. 5522 would require OSHA to
create one set of regulations for a substance which has many
different physical characteristics (See Table 1), explodes at
different flashpoints, and is part of countless industrial
processes. Committee Republicans strongly believe that H.R.
5522 fails to responsibly consider the wide variety of issues
relating to the combustible dust hazard, before mandating a
rulemaking.
TABLE 1.--PARTICLE SIZE OF COMMON MATERIAL\16\
------------------------------------------------------------------------
Common materials Size (microns)
------------------------------------------------------------------------
Talcum powder, fine silt, red blood cells, 5 to 10.
cocoa.
Pollen, milled flour, course silt......... 44 to 74.
Table salt................................ 105 to 149.
Coarse sand............................... 297 to 1000.
------------------------------------------------------------------------
Abbreviated rulemaking does not equal protective rulemaking
---------------------------------------------------------------------------
\16\Ibid.
---------------------------------------------------------------------------
Should it be determined that a combustible dust regulation
is needed, Committee Republicans generally share the Majority's
view that the regulation be completed in a reasonable amount of
time. However, previous rulemakings have shown that the
expedience with which an agency promulgates a rule must be
weighed with an eye to the rule's ultimate effectiveness. For
instance, OSHA worked on a regulation for hexavalent chromium
for several years before a court finally ordered the regulation
to be completed in three years. While the effectiveness of the
hexavalent chromium regulation is generally recognized, the
fact that it required several years to be completed underscores
the care that must be given to the rulemaking process. The same
point can be made with respect to the grain standard.\17\
Supporters of H.R. 5522 suggest that the grain standard
implemented by OSHA had such a positive effect on safety that
it demonstrates the need for a broader combustible dust
regulation. History might guide these supporters to acknowledge
that it took seven years to promulgate this narrowly targeted
standard.
---------------------------------------------------------------------------
\17\29 CFR 1910.272.
---------------------------------------------------------------------------
Moreover, the success of the grain standard should be
credited, in large part, to a robust rulemaking process; one
which included significant stakeholder input. Unfortunately,
H.R. 5522 does not follow the rulemaking process for the grain
standard; but, instead, eliminates valuable input from the
interim final rule (IFR). This oversight becomes even more
glaring considering the fact that a combustible dust regulation
would likely reach more than sixty industries. Should not these
industries have the opportunity to comment or otherwise
participate in the rulemaking process? Unfortunately, the
Majority's answer to this important question would appear to be
no. This fact is all the more troubling considering that
industry must comply with an interim final rule within 120
days. Assistant Secretary Foulke highlighted this concern in a
letter opposing the bill:
Accordingly, we do not believe the deadlines in
either version of your bill will allow for a clear,
effective, and enforceable standard that is
economically and technologically feasible for as many
as 200,000 facilities that will likely be affected in
widely different industries throughout the entire
country. Moreover, the IFR deadline is particularly
problematic given that it will go into force without
the opportunity for input from employees, employee
representatives, scientific experts, small businesses
and the rest of the regulated community.\18\
---------------------------------------------------------------------------
\18\See Letter from Assistant Secretary Foulke, April 8, 2008.
---------------------------------------------------------------------------
H.R. 5522 could result in two conflicting standards
The bill also creates the very real possibility that OSHA's
final combustible dust regulation will look dramatically
different than the interim final rule. Such an outcome becomes
all too likely when one considers the fact that the final rule
must reflect stakeholder input, while the interim final rule
will not. As noted above, such input is crucial to the
rulemaking process, and its absence from the early part of the
process all but guarantees that the final rule on combustible
dust will be different than the interim rule. While this fact
is troubling on its face, its practical implications are even
more disturbing. Employers may very well be required to make
costly changes to their facilities and manufacturing processes
in order to comply with the interim final regulation, only to
be forced to make more modifications when OSHA issues its final
rule eighteen months after enactment of the bill. Forcing such
inconsistent regulation upon businesses and their employees
simply defies credulity, even for the Democrat Members of this
Committee.
Use of National Fire Protection Association Standards is problematic
Finally, but no less important, we are concerned by the
bill's retention of provisions relating to the National Fire
Protection Association's (NFPA) Standards. Our concerns were
illuminated by the testimony David Sarvadi presented at the
Committee's hearing on the bill, during which he stated:
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
preceding 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 become 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.\19\
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\19\See Testimony of David Sarvadi, Committee on Education and
Labor, ``H.R. 5522, the Combustible Dust Explosion and Fire Prevention
Act of 2008,'' Wednesday, March 12, 2008.
The complexity of these standards further demonstrates why
the bill's one-size-fits-all regulatory approach may be
inappropriate with regard to combustible dust.
AMENDMENTS OFFERED IN COMMITTEE
Woolsey amendment in the nature of a substitute
Representative Woolsey's amendment in the nature of a
substitute would direct OSHA to issue an interim final
Combustible Dust standard within 90 days, but jettisons all
regulatory procedures related to the interim rule. Further, the
amendment directs the Secretary of Labor to issue a final
standard relating to combustible dust within eighteen months of
enactment, but in this case, complying with all required
rulemaking procedures. Finally, the bill requires the Secretary
to revise the Hazard Communication Standard to include
combustible dusts. The Woolsey amendment was adopted without
objection.
Wilson amendment in the nature of a substitute
During the Full Committee's markup of the bill,
Representative Joe Wilson offered an amendment in the nature of
a substitute. Representative Wilson's common-sense amendment
required the Secretary of Labor to determine if a combustible
dust regulation was necessary, based on the conclusions of the
Imperial Sugar Company investigation and data gathered from the
combustible dust NEP. If the Secretary determined that a
regulation is necessary, then the agency is to proceed with a
rulemaking as outlined in the OSH Act. This rulemaking process
must be completed within 36 months. If a regulation is deemed
unnecessary, the Secretary must report to Congress as to why it
is not. The Wilson amendment failed on a voice vote.
H.R. 5522, as amended, was favorably reported by the Full
Committee to the House by voice vote.
CONCLUSION
As noted previously in these views, the Republican Members
of the Committee are deeply committed to protecting the health
and safety of American workers. This commitment guides our
views with respect to issues surrounding combustible dust, and
the question of whether the Occupational Safety and Health
Administration should be compelled to issue regulations in this
area, as required by H.R. 5522. We, like our Majority
colleagues, were deeply moved and saddened by the tragic
accident that occurred in Port Wentworth, Georgia in February
of this year. And we share our colleagues desire to take all
possible actions to ensure that similar accidents do not occur
in the future. We must disagree, however, with the legislative
manner in which the Majority would take those actions. Quite
simply, we cannot be sure that H.R. 5522, as currently written,
will have the results hoped for by its sponsors, however well-
intended their actions may be. Moreover, we are concerned with
the bill's unreasonably compressed timeframes and disregard for
statutorily-required rulemaking procedures. OSHA must have the
opportunity to complete its investigation of the Port Wentworth
accident; and, to conclusively determine what, if any,
regulatory changes are needed. To do otherwise, we fear, will
result in a regulation that, at the end of the day, is both
ineffective and unenforceable. That would be the least
desirable result possible; as such a regulation would do little
toward achieving our shared goal of protecting American
workers. It is this likely result, therefore, that compels us,
respectfully, to reject H.R. 5522 in its current form.
Howard P. McKeon.
Pete Hoekstra.
Judy Biggert.
Todd R. Platts.
Joe Wilson.
John Kline.
Cathy McMorris Rodgers.
Kenny Marchant.
Thomas Price.
Virginia Foxx.
Rob Bishop.
David Davis.
Tim Walberg.