The Hartford Courant’s Dave Altimari and Matthew Kauffman reported recently on what has transpired since the February 2010 explosion at the Kleen Energy plant in Middletown, CT. Six workers were killed in the incident at the new, nearly-completed electric power plant. The Courant story’s headline says a lot: “4 Years After Deadly Plant Explosion: No Ban On Gas Blows, Fines Slashed.” It’s a must-read piece.
The technical cause of the accident was Keystone Construction’s decision to use highly-pressurized natural gas to clean fine construction debris from the pipe structures. The term used to describe the practice is a “gas blow.” The problem ---and it’s a potentially deadly one---is that the smallest ignition source can cause the gas to explode. The source can be something as common as a static-electric or metal-on-metal spark, an electric heater, or a welding arc. The ignition source mixed with the flammable gas has catastrophic consequences, and that’s exactly what happened nearly four years ago at Kleen Energy.
In August 2010, OSHA announced it was proposing penalties totaling $16 million to 17 firms involved in construction of the Kleen Energy plant. The agency called “gas blows” a “deadly practice,” with OSHA chief David Michaels saying it was “inherently dangerous.” Earlier in the year, the U.S. Chemical Safety Board called for ban on “gas blows.”
The Courant’s Altimari and Kauffman write that in the nearly four years since the disaster, OSHA has:
“rejected calls for an outright ban on the use of flammable gas to clean out pipes. …OSHA is banking on compliance with new industry guidelines that include safe alternatives for pipe-purging.”
The Courant reporters explain:
“OSHA officials are convinced that the practice has been abandoned. …OSHA officials say they are satisfied that publicity about the Kleen Energy blast and changes in industry guidelines are sufficient to keep workers safe.”
They offer the following quote from Jordan Barab, OSHA’s second-in-command:
“In this case, I think that the terrible tragedy in Connecticut, for all intents and purposes, eliminated this mode of practice.”
Let’s assume that OSHA is right, and the power-generation industry has abandoned this deadly practice. Firms needing to clean piping have switched to safer alternatives to flammable gas, such as compressed air. The industry shouldn’t object then if OSHA officially prohibits the practice by putting a rule on the books.
I realize that getting a new OSHA rule in place is not an easy task. OSHA’s leadership itself is not shy about saying it’s a rare event which can take an average of seven years to accomplish. But not every rule needs to take this long; in fact, some don’t.
During all of the most recent Administrations, federal agencies have used a special provision of the Administrative Procedure Act (APA) to adopt quickly new non-controversial regulations. Specifically, section 553 of the APA provides a “good cause” exemption, which allows agencies to issue final rules in an expedited fashion. These “direct final rules” are typically used for new regulations that are unlikely to receive comments opposing them. Under the “good cause” exemption, the notice-and-comment process is unnecessary.
The Labor Department’s practice of issuing direct final rules goes like this: (1) the agency publishes the “direct final”; (2) a time period is set (e.g., 30 days) before the rule takes effect; (3) if during that time period, the agency receives a comment opposing it, the “direct final rule” is withdrawn; but (4) if no adverse comments are received by the agency, the rule becomes effective.
It’s not as if OSHA hasn’t issued “direct final rules.” They did so as recently as November 2013 to update rules regarding warning signs. A rule on the inherently dangerous practice of “gas blows” could simply say: “Using flammable gas to clean piping is prohibited,” and it could apply specifically to the power-generation industry.
Some might ask, if OSHA is correct and the industry has abandoned the practice, why do workers need the explicit prohibition on “gas blows”? That’s easy. It’s for employers who flout the law. For employers who think they know better than the experts. For employers who put profit ahead of workers’ lives. Importantly, OSHA would have a rule on the books for employers who have not already abandoned the dangerous practice of “gas blows.” It would give OSHA a valuable tool to throw the book at them.
The way I see it, it's not a heavy lift for OSHA to follow this path. If they publish a direct final rule and get adverse comments they ditch the idea. The workers at risk would be at no greater risk than they already are. Moreover, the statements of opposition would let OSHA and all of us know that some firms want the option of still using the “gas blow” process. Importantly, it will tell us that the inherently deadly practice has not been abandoned by the industry as OSHA suggests.
A rule on the books prohibiting gas blows would be a fitting tribute by OSHA to honor the lives of the six workers who were killed at Kleen Energy. Peter Chepulis, 48; Ronald J Crabb, 42; Raymond Dobratz, 58; Kenneth Haskell, 37; Roy Rushton, 37; and Chris Walters, 42, deserve nothing less.
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