[Federal Register Volume 78, Number 134 (Friday, July 12, 2013)]
[Pages 41908-41911]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-16838]



Sunshine Act Meeting

TIME AND DATE: July 25, 2013, 9:30 a.m.-4:30 p.m. EDT.

PLACE: Ronald Reagan Building and International Trade Center, Horizon 
Room, 1300 Pennsylvania Avenue NW., Washington, DC 20004.

STATUS: Open to the public.

MATTERS TO BE CONSIDERED: The Chemical Safety and Hazard Investigation 
Board (CSB) will convene a public meeting on Thursday, July 25, 2013, 
starting at 9:30 a.m. EDT at the Ronald Reagan Building and 
International Trade Center, Horizon Room, 1300 Pennsylvania Avenue NW., 
Washington, DC 20004. Between 9:30 a.m. and 12:15 p.m., the Board will 
consider and vote on the status designations of the following three 
recommendations issued by the CSB to the U.S. Occupational Safety and 
Health Administration: (1) 2001-05-I-DE-1 (revision of Process Safety 
Management standard to clarify coverage of atmospheric storage tanks 
connected to process vessels); (2) 2005-04-I-TX-9 (revision of Process 
Safety Management standard to require management of change reviews for 
certain organizational changes); and (3) 2010-07-I-CT-1 (issuance of a 
general industry and construction standards for fuel gas safety).
    Beginning at 1:30 p.m. EDT, the Board will consider and vote on the 
status designations of four recommendations related to the issuance of 
a general industry standard for combustible dusts as follows (1) 2006-
1-H-R1 (from Combustible Dust Study); (2) 2008-5-I-GA-R11 (from 
Imperial Sugar report); (3) 2011-4-I-TN- and (4) 2011-4-I-TN-R2 (from 
Hoeganaes case study), and possibly other items at the discretion of 
the Chair.
    This notice is to provide information to the public concerning the 
matters related to the seven recommendations to OSHA listed above, 
which will be considered during the meeting. At the meeting, the staff 
will present their evaluations of the implementation of these seven 
recommendations. Following the staff presentations in the morning and 
afternoon, the Board will hear brief statements from OSHA, interested 
stakeholders, and the public. The Board will consider these analyses 
and vote on the status to assign to each recommendation according to 
Board Order 22 [http://www.csb.gov/assets/Record/BO_22.pdf.].
    In addition, at this meeting, the CSB will also consider the 

[[Page 41909]]

designation of a general industry standard for combustible dust as a 
``Most Wanted Chemical Safety Improvement'' issue under Board Order 46 
    The following section contains summaries of the staff evaluations 
for the recommendations that will be presented to the Board for 


Recommendation to the U.S. Occupational Safety and Health 
Administration 2001-05-I-DE-1

Recommendation Text

    Ensure coverage under the Process Safety Management Standard (29 
CFR 1910.119) of atmospheric storage tanks that could be involved in a 
potential catastrophic release as a result of being interconnected to a 
covered process with 10,000 pounds of a flammable substance.

Rationale for Recommendation

    The recommendation followed a fatal explosion involving a poorly 
maintained and corroded atmospheric aboveground tank containing spent 
sulfuric acid and flammable hydrocarbons at the Motiva Enterprises 
refinery in Delaware City in July 2001. The company considered the tank 
to be exempt from the OSHA Process Safety Management standard under the 
1997 Meer decision. This decision was issued by an administrative law 
judge of the U.S. Occupational Safety and Health Review Commission. The 
decision, exempts from PSM coverage, ``flammable liquids stored in 
atmospheric tanks or transferred which are kept below their normal 
boiling point without benefit of chilling or refrigeration.'' The CSB 
Motiva investigation concluded that if Motiva had adhered to a PSM 
standard requirements for the tank, the accident could have been 

Summary of OSHA Response to the Recommendation

    OSHA does not agree that it is necessary to revise the PSM standard 
in order to clarify the issues of coverage of tanks connected to 
processes. As an alternative, OSHA reported to the CSB in 2003 that it 
would issue a revised PSM Compliance Directive that would clarify to 
all its compliance officers and to the regulated parties that tanks 
like the one at Motiva (which OSHA contended had a process function as 
well as a storage function) were covered under PSM. To date, however, 
OSHA has not revised its compliance directive. An August 2012 
communication from the Assistant Secretary projected completion of a 
revision in 6-9 months, and the agency's Spring 2013 regulatory agenda 
indicates that it is considering ``clarifying the PSM exception for 
atmospheric storage tanks'' as part of a broader revision of its PSM 
standard, 29 CFR 1910.119.

Summary Evaluation

    Because ten years have passed and OSHA has yet to take any 
regulatory or other actions which would address the intent of the 
recommendation, CSB staff propose that the Board vote to designate 
Recommendation 2001-5-I-DE-R1 with the status ``Open-Unacceptable 

Recommendation to the U.S. Occupational Safety and Health 
Administration 2005-04-I-TX-R9

Recommendation Text

    Amend the OSHA PSM standard to require that a management of change 
(MOC) review be conducted for organizational changes that may impact 
process safety including:
    (a) Major organizational changes such as mergers, acquisitions, or 
    (b) Personnel changes, including changes in staffing levels or 
staff experience; and
    (c) Policy changes, such as budget cutting.

Rationale for Recommendation

    The CSB investigation of the 2005 explosions and fire at the former 
BP refinery in Texas City, Texas revealed that poorly managed corporate 
mergers, leadership and organizational changes, and budget cuts 
increased the risk of catastrophic accidents at the site. The CSB also 
noted that a 2002 survey revealed that organizational change was 
assessed in the Management of Change (MOC) programs of only forty-four 
percent (44%) of chemical processing companies, strongly suggesting 
that assessment of such organizational factors are not widely used in 
the industry. While OSHA's Process Safety Management (PSM) standard (29 
CFR 1910.119) requires MOC analyses for changes to ``process chemicals, 
technology, equipment, procedures; and, changes to facilities that 
affect a covered process,'' the CSB concluded that it does not 
explicitly require that employers conduct MOC reviews for 
organizational, personnel and policy changes that could affect process 
safety. Consequently, the CSB recommended that OSHA amend the PSM 
standard to clarify that MOC reviews must be conducted for 
organizational, personnel, and policy changes that may impact process 

Summary of OSHA Response to the Recommendation

    OSHA responded that the PSM standard already requires employers to 
develop and implement MOC reviews to determine the adequacy of all 
contemplated changes with respect to their safety and health impacts as 
they relate to ``process chemicals, technology, equipment, procedures, 
and facilities.'' In OSHA's view, these are the types of changes 
encompassed by the CSB recommendation. In addition, OSHA sent a 
memorandum to all Regional Administrators to clarify this policy with 
regard to the coverage of organizational changes under the PSM's 
management of change requirements. The policy clarification was to be 
provided to OSHA's compliance officers. OSHA's Spring 2013 regulatory 
agenda indicates that the agency is considering expanding the scope of 
its PSM standard to ``require greater organizational management of 
change from employers.''

Summary Evaluation

    A policy memorandum to OSHA Regional Administrators is not the 
permanent regulatory change envisioned by the Board, which sought an 
explicit change in the requirements of the standard through through 
rulemaking procedures. For this reason, staff propose that the Board 
vote to designate Recommendation 2005-04-I-TX-R9 with the status: 
``Open--Unacceptable Response.''

Urgent Recommendation to the U.S. Occupational Safety and Health 
Administration 2010-07-I-CT-UR1

Recommendation Text

    Promulgate regulations that address fuel gas safety for both 
construction and general industry. At a minimum:

    a. Prohibit the release of flammable gas to the atmosphere for 
the purpose of cleaning fuel gas piping.
    b. Prohibit flammable gas venting or purging indoors. Prohibit 
venting or purging outdoors where fuel gas may form a flammable 
atmosphere in the vicinity of workers and/or ignition sources.
    c. Prohibit any work activity in areas where the concentration 
of flammable gas exceeds a fixed low percentage of the lower 
explosive limit (LEL) determined by appropriate combustible gas 
    d. Require that companies develop flammable gas safety 
procedures and training that involves contractors, workers, and 
their representatives in decision-making.

[[Page 41910]]

Rationale for Recommendation

    The CSB investigated two natural gas explosions (Kleen Energy 
Natural Gas Explosion and ConAgra Natural Gas Explosion and Ammonia 
Release) and concluded that the fire and explosion hazards of releasing 
flammable gas in the presence of workers and ignition sources can be 
largely or entirely avoided through the use of currently available 
inherently safer methods than those currently in use in most 
workplaces. These CSB reports focused particularly on the hazards of 
gas purging in industrial establishments and ``gas blows'' conducted 
during the construction of gas-fired power plants; reports of these 
investigations can be found in the CSB Web page (www.csb.gov). The CSB 
also found that OSHA has three gas-specific standards for flammable 
gases that are used far less frequently in the workplace than natural 
gas. These existing gas standards apply to liquefied petroleum gases 
(propane and butane, 1910.110), hydrogen (1910.103) and acetylene 
(1910.102). Yet the Agency has no comprehensive fuel gas safety 
standard, despite the fact that fuel gases pose serious explosion and 
fire hazards and are in much more widespread use in OSHA-regulated 

Summary of OSHA Response to the Recommendation

    OSHA's initial response to the recommendation described several 
forceful enforcement actions affecting the industry sector conducting 
``gas blows'' during the construction of power plants--which the CSB 
commended--but stated only that it would ``consider'' a new fuel gas 
standard during its next regulatory review. In a subsequent 
notification, however, OSHA reported that it did not ``believe this is 
the appropriate time to initiate the regulatory process.'' Briefly 
stated, OSHA indicated that ``the most prudent approach for OSHA is to 
monitor the implementation'' of two recently revised NFPA standards and 
``evaluate their effectiveness at controlling the targeted hazards, and 
then determine if additional rulemaking is necessary to protect 
workers.'' Moreover, OSHA did not include fuel gas rulemaking in the 
Agency's most recent regulatory agenda (Spring 2013), indicating that 
it has no current intention to begin rulemaking in this arena.

Summary Evaluation

    Per 42 U.S.C. 7412(6)(J), OSHA must inform the CSB within 180 days 
whether it will initiate rulemaking (and provide a timetable), or not 
initiate rulemaking (and explain why). OSHA's latest response to the 
CSB recommendation indicates that the agency does not currently intend 
to pursue rulemaking, and provides a rationale for this decision.
    CSB's Board Order 22 obligates staff to recommend an ``Open- 
Unacceptable Response'' status for urgent recommendations that ``[have] 
not been responded to in an acceptable manner within 6 months and [are] 
not at a point where completion is imminent.'' In this case, OSHA's 
apparently indefinite postponement of any regulatory action on fuel 
gases is inconsistent with the intent of the recommendation and staff 
propose that the Board vote to change the status of Recommendation 
2010-07-I-CT-UR1 to ``Open-Unacceptable Response.''

Recommendations to the U.S. Occupational Safety and Health 
Administration Related to the Prevention of Combustible Dust Fires and 

Recommendation Text

    Recommendation 2006-1-H-R1 (from the Combustible Dust Hazard 
Investigation Study):

    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 
(including NFPA 654 and NFPA 484), and include at least--hazard 
assessment,--engineering controls,--housekeeping,--building 
design,--explosion protection,--operating procedures, and--worker 

    Recommendation 2008-5-I-GA-R11 (from the Imperial Sugar report):

    Proceed expeditiously, consistent with the Chemical Safety 
Board's November 2006 recommendation and OSHA's announced intention 
to conduct rulemaking, to promulgate a comprehensive standard to 
reduce or eliminate hazards from fire and explosion from combustible 
powders and dust.

    Recommendation 2011-4-I-TN-R1 (from the Hoeganaes case study):

    Ensure that the forthcoming OSHA Combustible Dust Standard 
includes coverage for combustible metal dusts including iron and 
steel powders.

    Recommendation 2011-4-I-TN-R2 (from the Hoeganaes case study):

    Develop and publish a proposed combustible dust standard for 
general industry within one year of the approval of this case study.

Rationale for Recommendations

    After investigating three deadly combustible dust accidents that 
claimed the lives of fourteen workers in 2003, the CSB conducted a 
comprehensive combustible dust hazard investigation study. Released in 
late 2006, the study concluded that voluntary consensus standards and 
enhanced regulatory enforcement efforts are insufficient to prevent 
dust fires and explosions that occur across a broad range of 
industries. The CSB therefore recommended that OSHA issue a combustible 
dust general industry standard. In 2009, after investigating the 
catastrophic sugar dust explosions at the Imperial Sugar Refinery in 
Port Wentworth, Georgia that killed 14 workers, the CSB issued a second 
recommendation calling on OSHA to ``proceed expeditiously'' with the 
rulemaking. In 2011, following its investigation of three iron dust-
related incidents at the Hoeganaes Corporation facility in Gallatin, 
Tennessee, that killed five workers, the CSB issued two more 
recommendations to OSHA regarding the dust rulemaking: one calling for 
the inclusion of metal dust in the scope of the standard, and a second 
calling for issuance of a proposed rule within one year.

Summary of OSHA Response to the Recommendations

    Initially resistant to the CSB's recommendation to develop a new 
standard, in October 2007, OSHA launched a National Emphasis Program to 
improve regulatory enforcement in workplaces handling combustible dust. 
The program was revised and reissued in March 2008 to better target 
affected industries. That same month, OSHA distributed a combustible 
dust Safety and Health Information Bulletin (SHIB) to approximately 
30,000 workplaces within industries with potential dust hazards.
    In April 2009, OSHA indicated that it would commence a combustible 
dust rulemaking, and issued an Advanced Notice of Proposed Rulemaking 
in the Federal Register in October 2009. That winter, OSHA held a 
series of stakeholder meetings, but twice postponed the next step in 
the rulemaking process, the Small Business Regulatory Enforcement 
Fairness Act (SBREFA) Panel Review. In May 2011, OSHA held a 
Combustible Dust Expert Forum in May 2011. In January 2012, shortly 
after the release of CSB's most recent recommendations to the agency, 
OSHA released its Fall 2011 Semiannual Regulatory Agenda, which 
indicated that an estimated date for the next step in the rulemaking 
process was ``undetermined.'' OSHA reiterated its commitment to 
developing a standard, however, in a June 14, 2012 letter to the CSB, 
and its most recent Semiannual

[[Page 41911]]

Regulatory Agenda estimates that the SBREFA Panel Review will be held 
in October 2013.

Summary Evaluation

    OSHA has initiated a rulemaking to issue a combustible dust 
standard and continues to undertake noteworthy and important regulatory 
enforcement and educational efforts to prevent and control combustible 
dust hazards in the workplace. The federal rulemaking process is 
complex; however, a combustible dust general industry standard is 
urgently needed to prevent future fires and explosions from claiming 
the lives of American workers. In addition, more than six years have 
passed since the CSB first issued a recommendation for this standard. 
Therefore, staff propose that the Board vote to designate all four 
recommendations with the status: ``Open-Unacceptable Response.''
    No factual analyses, conclusions, or findings presented by staff 
should be considered final. Only after the Board has considered the 
staff presentations and voted to approve a change in status of the 
recommendation should that status be considered final.

Additional Information

    The meeting will be free and open to the public. If you require a 
translator or interpreter, please notify the individual listed below as 
the ``Contact Person for Further Information,'' at least five business 
days prior to the meeting.
    The CSB is an independent federal agency charged with investigating 
accidents and hazards that result, or may result, in the catastrophic 
release of extremely hazardous substances. The agency's Board Members 
are appointed by the President and confirmed by the Senate. CSB 
investigations look into all aspects of chemical accidents and hazards, 
including physical causes such as equipment failure as well as 
inadequacies in regulations, industry standards, and safety management 
Public Comment: Members of the public are invited to make brief 
statements to the Board at the conclusion of the staff presentations in 
the morning and afternoon. The time provided for public statements will 
depend upon the number of people who wish to speak. Speakers should 
assume that their presentations will be limited to five minutes or 
less, and may submit written statements for the record.

FOR FURTHER INFORMATION CONTACT: Hillary J. Cohen, Communications 
Manager, [email protected] or (202) 446-8094. General information 
about the CSB can be found on the agency Web site at: www.csb.gov.

Rafael Moure-Eraso,
[FR Doc. 2013-16838 Filed 7-10-13; 4:15 pm]