Preventable deaths and unacceptable progress: CSB criticizes OSHA

Celeste wrote earlier this month about a public meeting at which the US Chemical Safety Board would vote on whether to label several of their outstanding recommendations to OSHA as having seen unacceptable progress. I attended the day-long meeting, and thought the CSB staff and board members made a strong case for the “unacceptable” designations, which the board unanimously voted to adopt. Throughout the meeting, the CSB was careful to acknowledge the progress OSHA had made in addressing the hazards, the factors that impede effective OSHA action, and the preventability of explosions and other chemical incidents that kill workers and leave families and communities devastated.

CSB is an independent federal agency that conducts in-depth investigations of industrial chemical accidents and makes recommendations to government agencies, companies, trade associations, labor unions, and other groups about changes that can prevent future incidents. They track progress on the recommendations and periodically update the status of action as being “open” or “closed” (based on whether further action is necessary and likely) and “acceptable” or “unacceptable.” A recommendation may be designated as “unacceptable” because the relevant party has not accepted it or because that party is not implementing it in a timely manner. At its July 25th meeting, the CSB voted to consider the following recommendations to OSHA as “open/unacceptable”:

• Recommendation 2001-05-I-DE-R1 deals with ensuring coverage under OSHA's Process Safety Management (PSM) standard for atmospheric storage tanks that could be involved in a catastrophic release. This recommendation stems from CSB's investigation into the 2001 sufuric acid tank explosion at the Motiva Enterprises refinery in Delaware City, DE, which killed one worker.
• Recommendation 2005-04-I-TX-R9 calls for revisions of the PSM standard to require "management of change" reviews for organizational changes. CSB made this recommendation in its report on the 2005 BP America refinery explosion in Texas City, which killed 15 workers.
• Recommendation 2010-07-I-CT-UR1 calls for the issuance of a fuel gas safety standard for construction and general industry. The recommendation relates to CSB investigations of the 2009 natural gas explosion and ammonia release at ConAgra Foods in Garner, NC, which killed four workers, and the 2010 gas explosion at Kleen Energy in Middletown, CT, which fatally injured six workers.
• Four recommendations are related to the issuance of a general industry standard for the prevention of combustible dust explosions and fires. Recent CSB investigations involving combustible dust include the 2008 Imperial Sugar Company dust explosion and fire, which caused 14 deaths in Port Wentworth, GA, and three 2011 iron dust fires that fatally injured five workers at the Hoeganaes Corporation in Gallatin, TN.

Throughout the meeting, attendees were reminded of the human toll of these and other similar disasters. In his opening remarks, CSB Chairperson Rafael Moure-Eraso quoted several family members whose loved ones were killed on the job, including Tammy Miser, whose brother Shawn Boone was killed in a combustible dust explosion at the Hayes Lemmerz plant in Indiana; Chris Sherburne, whose husband Wiley Sherburne was killed at the Hoeganaes Corp plant in Tennessee; and Eva Rowe, who lost both her parents, James and Linda Rowe, in the BP Texas City explosion.

The meeting included two public comment opportunities – one in the morning addressing the first three recommendations, another in the afternoon focusing on combustible dust – and each began with a speaker from United Support and Memorial for Workplace Fatalities who reminded us of the awful human toll of preventable workplace disasters. In the morning session, Katherine Rodriguez spoke about her father, Ray Gonzalez, who was killed at age 54 at the same BP Texas City plant months before the explosion that claimed 15 lives, in an incident also related to inadequate process safety management. “I’m asking the Board to vote open-unacceptable on this recommendation so no other family has to go through the pain and suffering my family has,” she said at the meeting.

In the afternoon session, Mark Miser told of the death of his brother-in-law, Shawn Boone, who was killed in the Hayes Lemmerz dust explosion at age 33. Miser credited CSB with doing its research and helping Shawn’s family understand what happened to him, but criticized the US system for letting politics get in the way of worker health and safety. “Why is it acceptable for families and their communities to needlessly suffer?” he asked.

That needless suffering was a common theme, as speaker after speaker stressed the preventability of the explosions and chemical releases that kills and injure so many workers.

What OSHA Does – and Can Do
The staff presentations (Powerpoints are available here) described the steps OSHA has already taken to address the hazards as well as the rationale for deeming the agency’s progress on the recommendations to be insufficient. Thomas Galassi, Director of the Directorate of Enforcement Programs at OSHA, also gave a statement describing the steps it is taking to address the hazards under discussion, including preparing a directive on atmospheric tanks for field offices, a Request for Information related to revising the PSM standard, a memorandum to regional administrators regarding organizational change, general duty clause citations related to a new fuel gas process safety standard from the National Fire Protection Association, and an advance notice of proposed rulemaking on combustible dust. He also reminded everyone, “Although OSHA’s mission is to assure safe and healthful working conditions for workers in America, it is ultimately the employer’s responsibility to provide a safe and healthy workplace.”

In their remarks, Board Members Beth Rosenberg and Mark Griffon made it clear that they see factors beyond OSHA’s control as obstacles to OSHA progress, particularly when it comes to setting standards. These include an anti-regulatory climate and, as multiple public commenters noted, a limited budget. There were several mentions of the recent Government Accountability Office report that found it takes OSHA nearly eight years to issue each new worker protection rule, in part because of providing far more opportunity for public input (which is often industry input) and lengthy review by the White House Office of Management and Budget. Griffon suggested that perhaps CSB could investigate the root causes of delays at OSHA. Griffon also said – and Rosenberg concurred – that the aim in finding the recommendations “open/unacceptable” was not to condemn OSHA, and that a preferable terminology would be to state that the recommendations “remain open.”

All of the people who delivered in-person public comments seemed to be in agreement that employers need to do a better job of controlling these hazards and additional OSHA action is necessary to save lives. Some commenters highlighted the role of anti-regulatory industry groups, and expressed concern that CSB criticism of OSHA could be taken as supporting positions of anti-OSHA organizations. Randy Rabinowitz, speaking on behalf of the United Steelworkers, suggested that because standard-setting is resource-intensive and OSHA has limited resources, urging OSHA to pursue rules on hazards like combustible dust could result in less attention for hazards like silica and beryllium.

I suspect the majority of those present at the meeting would prefer that OSHA get more resources and more support from Congress and the White House so it wouldn’t have to pursue a few hazards at the expense of many others that are endangering workers’ lives. And, although I don’t recall hearing anyone address it, I was also wondering how much OSHA’s approach might change under a future administration that values workers’ health and safety less than this one does. Under this administration, OSHA may be very willing to cite employers for fuel and dust explosions under the general duty clause; in the future, though, having standards for these hazards might mean the difference in whether inspectors write citations or not.

Another important outcome of the meeting was the CSB’s designation of combustible dust as its “Most Wanted Chemical Safety Improvement.” The National Transportation Safety Board has had great success in highlighting top hazards for improvement in this way, explained CSB Director of Recommendations Manuel Gomez. Mike Elk of In These Times wrote about CSB’s designation of the combustible dust hazard as "most wanted" and the prospects for OSHA releasing a rule on it – a process that has begun but stalled, and that could move more quickly if OSHA were to build on an existing National Fire Protection Association dust explosion standard.

I’m glad the Chemical Safety Board held the meeting to highlight these hazards and the preventability of so many worker deaths and so much community devastation. To paraphrase something Katherine Rodriguez said, OSHA has taken steps in the right direction, but we fear it may not be enough to prevent more deaths.