Board to rebuke OSHA for failing to write safety rules

More than five years after deadly explosions and fire ripped through a sugar refinery near Savannah, the federal agency charged with protecting workers from such disasters still hasn’t drafted national safety standards it has promised to help prevent similar tragedies.

Thursday, the Occupational Safety and Health Administration could get a rare public rebuke for foot dragging from an independent federal safety board that long ago recommended regulations for combustible dust. That hazard has resulted in at least 135 deaths across a range of industries since 1980.

The Chemical Safety and Hazard Investigation Board (CSB) will also consider designating creation of a national standard as its first-ever “Most Wanted Safety Improvement” during a hearing in Washington, D.C.

The moves would represent an extraordinary — if largely ceremonial — taking to task of one federal agency by another.

» VIDEO: Animated model explain how the explosion occurred

» PDF: The CSB's 2006 report on combustible dust dangers

“We don’t seem to be very close … to having this comprehensive standard,” CSB Chairman Rafael Moure-Eraso told The Atlanta Journal-Constitution. “We are basically telling OSHA ‘your response is unacceptable.’ ”

Safety board members can’t censure OSHA or force it to do anything. But it can cajole the agency and try to win support for its recommendations from labor groups, industry, Congress or the White House.

The CSB found that massive accumulations of combustible sugar dust caused the February 2008 inferno at the Imperial Sugar plant in Port Wentworth, killing 14 workers and injuring dozens more, including many with life-altering burns.

It was the deadliest combustible dust disaster CSB had ever investigated and is believed to be the worst such U.S. incident in decades.

CSB started pressing OSHA for a national standard governing combustible dust more than a year before the deadly sugar refinery blast.

OSHA itself has long recognized the potential threat. In April 2009, in response to the CSB investigation at Imperial Sugar, the agency said it would trigger the process for setting national standards. That winter OSHA began “stakeholder meetings” that included industry and labor groups.

But the process appears to have become mired in red tape, even as the dust threat persists in many types of facilities. In 2011, two dust-related explosions at a Tennessee powdered iron factory killed two people and injured another. Combustible dust contributed to an incident in a New Jersey factory last year that injured seven.

OSHA now says its next major step – seeking input from small businesses required under a 1996 federal law – won’t start until November.

A spokesman for OSHA said officials will testify at Thursday’s hearing “about the significant actions we have taken to protect workers from the hazards identified in the CSB’s recommendations, as well as other actions we are taking to protect workers.”

OSHA says it has taken several steps, including issuing bulletins and designating the threat a national emphasis. As it did with Imperial Sugar, OSHA has also fined companies for unsafe conditions following dust explosions or fires.

Of the 11 safety recommendations CSB issued in the wake of the Imperial Sugar tragedy, however, its request of OSHA for national dust standards is the only one that has not been completed. The company, insurers and trade groups have all responded. The Port Wentworth plant was rebuilt with significant safety upgrades.

‘Insidious threat’

Combustible dust incidents are eerily common — nearly one per month on average, according to an AJC analysis of a CSB report from 2006. The blasts claimed 119 lives in the U.S. from 1980 to 2005. Particulates of such things as sugar, flour, coal, plastics, wood and even metals, when suspended in the air under the right conditions, can ignite.

OSHA’s website lists data from the 2006 CSB study on combustible dust. CSB found the 281 dust-related incidents also injured 718 people.

Not included in that total are the 38 injured or the 14 who died from the Imperial Sugar blast. Mark Tate, a Savannah attorney for 21 Imperial Sugar workers or their families, applauded the CSB’s efforts. He said most of his clients’ cases have been settled, but many continue to suffer pain and face the constant risk of infection and other ailments.

“They’re living under a cloud and they always will,” he said.

Former CSB member William Wark also wants a standard. The first vote he cast was to push OSHA to set a combustible dust standard.

“I felt it was an insidious hazard which can sneak up on you and do bad things like it did at that sugar plant,” Wark said.

The appointee of President George W. Bush helped investigate the Imperial Sugar explosion. A Vietnam veteran, Wark said he “was in a chopper flying over (the refinery) while it was still burning,” and compared the devastation to “three 500-pound bombs” tearing through the complex.

While the process to pass national standards can be lengthy, in this instance, he said, OSHA has taken too long. Regulators, he said, can lose momentum to push for safety changes when so much time elapses after a tragedy.

Georgia did set state fire safety standards for combustible dust in the wake of the tragedy, and many other states and cities also have them, Moure-Eraso, the CSB chairman, said. Many companies also follow industry guidelines.

But having an enforceable federal standard would allow inspectors to identify hazards and impose penalties, which might prevent future catastrophes, he said.

The advocacy plan CSB officials are contemplating could put pressure on OSHA to act. CSB officials were short on details of their plan, but past efforts have included writing opinion pieces for newspapers and making other media appearances and speeches before influential organizations.

It can do little more than lobby. Unlike OSHA, the board is not a regulatory agency and can’t enact rules or assess penalties. CSB, with a budget of just more than $10 million, investigates incidents, attempts to determine causes and makes safety recommendations.

The board will also discuss at its hearing several other safety recommendations it says OSHA has failed to adequately respond to in recent years.

OSHA disputes that.

“The Chemical Safety Board has raised a number of important issues over the past decade through recommendations to OSHA, and we have addressed the issues raised in each of them in the most efficient and effective manner possible, including those that are to be discussed and voted on at (Thursday’s) hearing,” spokesman Jesse Lawder said in a written statement.

A lengthy rule-making process is not uncommon for OSHA.

A Government Accountability Office report last year found it took OSHA 15 months to 19 years to issue new health and safety rules, and about seven years on average.

A 2011 report by consumer and worker rights advocacy group Public Citizen said that “onerous” rules OSHA must follow in setting safety standards, along with influence from corporations, delay lifesaving regulations. That has resulted in an agency unable to keep up with changing workplace hazards.

A 1996 law designed to protect small business from steep compliance costs also slows the rule-making process, said Keith Wrightson, a worker safety and health advocate with Public Citizen’s Congress Watch.

A key part of that process, which includes studying the cost of compliance and collecting comment from industry, is what OSHA says it is set to begin in November.

CSB has faced criticism of its own in recent years for being slow to release accident reports and to press for action on its recommendations. The agency says 76 percent of its recommendations over the years have received action and are now considered closed.

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