Sustained Outrage

When we last left our friends at the Labor Department’s Occupational Safety and Health Administration, they had no timeline to speak of for coming out with a new regulation aimed at protecting American workers from the increasingly obvious dangers of combustible dust. Back in July 2011, unidentified OSHA officials said in a Webchat:

OSHA is not able to project an estimate for when we will publish a proposed standard on combustible dust. The next step in the rule making process is to initiate the SBREFA panel review, which is currently estimated for December.

As best I can tell, OSHA has yet to convene that SBREFA (Small Business Regulatory Enforcement Fairness Act) panel, and at least one industry publication reported last month:

… The SBREFA Panel has been delayed several times, in large part because OSHA has not been ready to unveil the actual proposed regulatory text for the Rule.

So imagine my surprise when the combustible dust rule didn’t show up on this new list of OSHA’s rulemaking priorities. I asked the Labor Department about this, and a spokesman told me on Friday:

It did not fall off our agenda. It’s been moved to long term action.  This means we are continuing work on this project but we are not projecting a next action and date at this time.

Of course, just a couple of weeks ago, the U.S. Chemical Safety Board repeated its long-standing call for OSHA to publish a new standard on combustible dust — this time adding to the urgency by recommending OSHA do so within a year, after investigating three incidents involving flash fires and an explosion that killed five workers last year at Hoeganaes powdered metals plant in Gallatin, Tennessee. CSB Chairman Rafael Moure-Eraso said:

The three accidents at the Hoeganaes facility were entirely preventable. Despite evidence released by the CSB and information that Hoeganaes had in its possession even before the first accident in January 2011, the company did not institute adequate dust control or housekeeping measures. Dust fires and explosions continue to claim lives and destroy property in many industries. More must be done to control this hazard. No more lives should be lost from these preventable accidents.

The CSB first called for an OSHA regulation on combustible dust after issuing a 2006 report that identified 281 dust fires and explosions that killed 119 workers and injured 718 others nationwide between 1980 and 2005. In a November 2011 report, board investigators noted 17 other deaths in dust incidents the agency is examining, including three in a December explosion that killed three at the AL Solutions Inc. metals recycling plant in New Cumberland, Hancock County, W.Va.

Fireman battle a fire at AL Solutions after an explosion rocked the plant Thursday, Dec. 9, 2010 in New Cumberland, W.Va. Three workers were killed and one person was injured, police and company officials said Thursday. (AP Photo/The Review, Michael D. McElwain)

On February 7, 2008, a huge explosion and fire occurred at the Imperial Sugar refinery northwest of Savannah, Georgia, causing 14 deaths and injuring 38 others, including 14 with serious and life-threatening burns. The explosion was fueled by massive accumulations of combustible sugar dust throughout the packaging building. Photo courtesy of U.S. Chemical Safety Board.

Not so long ago, then-Senator and presidential candidate Barack Obama claimed to think protecting workers from the dangers of combustible dust was a priority. Following the deaths of 14 workers at a combustible dust explosion at the Imperial Sugar near Savannah, Ga., Obama issued this prepared statement for a Senate hearing called Dangerous Dust: Is OSHA Doing Enough to Protect Workers:

We must do everything we can to protect America’s workers and prevent terrible accidents, like the deadly explosion at Imperial Sugar earlier this year, that occur as a result of combustible dust. It’s long past time that OSHA issue a standard to prevent these kinds of accidents …

That’s not all, then-Sen. Obama blasted the Bush administration’s inaction on the issue:

As I have said before, the Bush Administration’s Department of Labor has used its regulatory authority to side with corporations over the public interest – even when its decisions undermine the spirit of the law and puts workers’ lives at risk. Unfortunately, the evidence that this Labor Department is failing to fulfill its mission continues to grow.

He wasn’t done yet:

Occasional fines in isolated cases, like in the case of Imperial Sugar, will not solve the problem. Fines and penalties must be applied systemically when violations occur to encourage compliance by other employers. OSHA must also issue standards in a timely and effective manner. Taken together, recent independent evaluations of agency performance indicate that the Labor Department is suffering from a dangerous lack of leadership and focus, and workers are paying the price. This hearing is only the latest in a series of events that make it clear that Secretary Chao and her team should recommit their efforts to enforce the protections workers are due under the law.

Regular readers know that a recent report from Public Citizen explained what OSHA’s been doing now that President Obama has a chance to use his regulatory authority to side with the public interest over corporations:

The Occupational Safety and Health Administration (OSHA) has produced regulations in the past decade at a far slower rate than ever before, postponing rules that would have prevented more than 100,000 serious injuries, more than 10,000 cases of illness and hundreds of fatalities, a new Public Citizen report shows.

The report, “OSHA Inaction,” found that since 2001, OSHA has produced just one new health or safety standard every 2.5 years. Previously, the agency produced an average of 2.6 rules per year, the report found. Individual OSHA regulations have been delayed for as long as 31 years, and the agency has been unable to address a wide array of common workplace hazards. Presidential administrations, Congress and the U.S. Supreme Court have all had a hand in slowing down the rulemaking process.

Back in 2008, then-Sen. Obama talked about how Congress needed to step in on combustible dust if the administration wouldn’t act. These days, President Obama talks a lot about how “we can’t wait” for Congress to act, and how his administration will use the authorities it has to act where lawmakers won’t.  That philosophy apparently doesn’t apply to protecting workers from combustible dust. You have to wonder if anybody working at the White House has bothered to watch the Chemical Safety Board’s truly horrifying video, “Iron in the First,” about what combustible dust did to workers at Hoeganaes:

The video starts with the words of Christina Sherburne, wife of one of the workers killed at Hoeganaes, who spoke at a CSB public meeting on the investigation. Referring to her son and the aftermath of the accident that fatally injured her husband, Wiley Sherburne, she said:

Everything was changed that morning.  And when Cody and I got to the hospital the first thing the doctors told us walking in the door was he was burned 95% of his body, and ‘we don’t think he’s going to make it.’  There’s nothing you can say to that.