Sustained Outrage

Plant Explosion

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. (AP Photo/The Review, Michael D. McElwain)

The new leadership over at the U.S. Chemical Safety Board does a lot of patting itself on the back about what it says is “a new emphasis on public transparency and engagement.” And those who continue to criticize the management of the board under now-ousted Chairman Rafael Moure-Eraso love to point to how they believe Moure-Eraso was too secretive about some things the board was doing.

And in fact, the new leadership’s plan to have regular, open-to-the-public business meetings provides an opportunity for lots of transparency, with public updates on investigations, and open discussion among board members and various other stakeholders about important worker and community safety issues.

But if the public isn’t able to see the important materials that board members are basing their discussions and votes on, that’s not really transparency.

The most notable example from yesterday’s board meeting was, as reported in our Charleston Gazette-Mail story,  was the refusal to make public the 42-page report detailing the urgent recommendations from CSB investigators for DuPont’s La Porte, Texas, plant.

There was another example, though, buried in some of the documents about the board meeting — and it’s an important one for West Virginia. The CSB’s list of “notation votes” (that is, votes not discussed or taken in public meetings) includes one that indicates the board considering changing the status of the AL Solutions response to its recommendations following an investigation of the December 2010 fire and explosion that killed three workers at the company’s plant in New Cumberland, Hancock County.

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Will the Chemical Safety Board survive?

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Obama administration Chemical Safety Board nominee Kristen M. Kulinowski testifies during a Senate confirmation hearing last week.

It’s growing increasingly difficult to see a light at the end of the tunnel that the U.S. Chemical Safety Board finds itself in these days. Here’s one of the latest takes on things, from the San Francisco Chronicle:

The tiny federal agency that has urged big reforms in how California regulates oil refineries is in disarray.

To some, the strife at the U.S. Chemical Safety Board — the 40-person authority charged with investigating industrial accidents and recommending ways to improve safety — bears strong resemblance to the headlines from developing nations:

Its leader, seen by critics as an autocrat, is forced out before his term is up. His successor takes charge in what detractors call a backroom maneuver and moves quickly to consolidate power, ordering loyalists of the ousted regime removed from their posts with the help of armed guards.

“What is going on at the Chemical Safety Board is a little slice of the eastern Ukraine here in Washington, D.C.,” said Jeff Ruch, executive director of the Public Employees for Environmental Responsibility, a group that advocates for government workers.

Meanwhile, he said, the board’s mission of pushing regulatory reform is languishing. “The industrial infrastructure is getting older, and we’re not doing anything about it.”

Engler_RichardLRNow, when I interviewed the CSB’s acting chairman, Rick Engler, a few weeks ago, he had some solid things to say. But in some ways, the jury is probably still out. For example:

—  Chairman Engler said that he disagrees with efforts by chemical industry lobbyists to narrow the scope of the board’s investigatory authority, but he also emphasized his belief that the board itself needs to narrow its priorities.  “We are a very small agency and we can be most effective by focusing on a small number of issues,” Engler told me.

— While he says that we are currently at a critical time of the Obama administration when it comes to any potential chemical safety reforms, Chairman Engler also does what so many people in the labor community appear willing to do: Let the heads of agencies like the Occupational Safety and Health Administration off the hook for not more aggressively using their rule-making authority these last nine years.  Engler noted his own view is “there isn’t any point” in criticizing OSHA chief David Michaels for his agency’s failure to move beyond the talking stage on the CSB’s “Most Wanted” safety reform: A new federal standard on deadly combustible dust. “The bottleneck is above his level and it’s unfortunate that we have a system that puts so many hurdles in front of urgently needed standards,”  Engler said.

The most impressive thing I heard from Chairman Engler, though, came when I asked him if he agreed with the conclusions of now-ousted Board Chairman Rafael Moure-Eraso in a New York Times op-ed piece that the United States is facing “an industrial chemical safety crisis.” Chairman Engler said:

I think there is a continuing crisis and under my watch I don’t want to wake up in the morning and hear about the next disaster where we have multiple facilities. I really genuinely believe that enough is enough.

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Judge presses for deal on chemical spill records

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Coal Water Pollution

The former site of Freedom Industries, shown in an Associated Press file photo take just after the January 2014 chemical spill. The tanks have since been removed.

We learned last week of some potential bombshell disclosures in the documents filed in the chemical spill case that’s being pursued against West Virginia American Water Co. and Eastman Chemical:

Eastman Chemical Co. did not properly caution Freedom Industries about the potential for the chemical Crude MCHM to corrode Freedom’s storage tanks prior to Freedom’s January 2014 leak that contaminated the Kanawha Valley region’s drinking water supply, lawyers for area residents allege in new court filings this week.

Lawyers for residents also alleged in their court filings that then-Freedom Industries official Dennis Farrell tried unsuccessfully on the morning of the leak to convince a West Virginia American Water Co. official to turn off the intake pumps on its Elk River treatment plant, located just 1.5 miles downstream from the site of the Freedom facility.

But we also know that key documents that could tell us more about all of this — and about the story of a long-forgotten intake West Virginia American originally had above the Freedom industrial site — remain under seal, pending a final ruling on their status by U.S. District Judge John T. Copenhaver.

On Friday, Judge Copenhaver pressed the parties in the litigation to come up with a deal about those records. In a two-page order, the judge said:

That counsel for all parties and any public document custodians be, and hereby are, directed to meet and confer on or before July 15, 2015, toward the end of reaching an agreement that would result in spreading on the public record the documents presently lodged with the court under seal as presented for filing on May 18, 2015, and May 28, 2015, and July 6, 2015.

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Latest DuPont citation mirrors Belle violation

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Gazette photo by Chris Dorst

The inspection results from the U.S. Occupational Safety and Health Administration are in regarding the terrible poison gas leak that killed four workers at DuPont Co.’s plant in LaPorte, Texas, last November.  Here’s the bottom line from the OSHA press release:

Four workers killed by a lethal gas in November 2014 would be alive today had their employer, DuPont, taken steps to protect them, a U.S. Department of Labor investigation found.

The department’s Occupational Safety and Health Administration today cited DuPont for 11 safety violations and identified scores of safety upgrades the company must undertake to prevent future accidents at its Lannate/API manufacturing building in La Porte. The company employs 313 workers who manufacture crop protection materials and chemicals there.

“Four people lost their lives and their families lost loved ones because DuPont did not have proper safety procedures in place,” said Assistant Secretary of Labor for Occupational Safety and Health Dr. David Michaels. “Had the company assessed the dangers involved, or trained their employees on what to do if the ventilation system stopped working, they might have had a chance.”

OSHA continued:

The fatal incident occurred as one worker was overwhelmed when methyl mercaptan gas was unexpectedly released when she opened a drain on a methyl mercaptan vent line. Two co-workers who came to her aid were also overcome. None of the three wore protective respirators. A fourth co-worker — the brother of one of the fallen men — attempted a rescue, but was unsuccessful. All four people died in the building.

Methyl mercaptan is a colorless gas with a strong odor. It is used in pesticides, jet fuels and plastics. At dangerous levels of exposure, the gas depresses the central nervous system and affects the respiratory center, producing death by respiratory paralysis.

Among the citations issued by federal inspectors was one for a “repeat violation” for allegedly “not training employees on using the building’s ventilation system and other safety procedures, such as how to respond if the fans stopped working.” OSHA noted, without further explanation:

In July 2010, DuPont was cited for a similar violation.

Kanawha Valley residents may remember that similar violation. It was issued to DuPont’s Belle plant following a series of incidents in January 2010 that left one worker dead.

In the Belle incident, the OSHA citation in question stated:

Small Lots Manufacturing (SLM) Unit, Phosgene Shed: Employees working in the SLM Unit were not trained to recognize that leaving liquid phosgene in a non-vented flexible transfer hose for an extended period of time could result in the rupture of the flexible hose due to the thermal expansion of the liquid phosgene as determined on January 25, 2010.

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New data details worker deaths

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worker deaths map

There’s a new database and map tool out today that provides what may be the best list available of workers who died on the job in these United States last year.

You can view the data here and check out the map here.  A press release distributed by a coalition of worker safety advocates explained:

The U.S. Worker Fatality Database identifies more than 1,780 workplace fatalities in 2014, with additional data still being collected. Based on previous data, this is likely to represent over one-third of the total cases of workplace deaths from traumatic events for that year.  

The final toll for 2013, released last week by the U.S. Bureau of Labor Statistics, is 4,585 deaths on the job from sudden traumatic events. An additional 50,000 workers are expected to die each year from long-term exposure to toxic chemicals and other occupational hazards.

After action: Learning from W.Va.’s water crisis

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Coal Water Pollution

In a lot of ways, the “After Action Review” made public last week by the Tomblin administration was an amazing document.  Click here to read the whole thing or here to download the main body summary of the findings.

Writing in our news story about the report, I called it the state’s “most frank assessment” to date of government’s performance in responding to the Freedom Industries chemical leak and the water crisis that followed. Among the admissions:

— The state “struggled at times” to effectively communicate information to the public through the news media. News conferences occurred with little notice, and messages were “lost amid confusing or ambiguous statements.” The report noted that “scientific information ought to be conveyed in an easily understandable manner.”

Earl Ray Tomblin— Government officials “should have visited individuals and businesses in the affected area to help restore calm and exhibit empathy.”

— Recalling an industry-only “stakeholders” meeting that was exposed by The Charleston Gazette, the report said that, “In preparing the initial draft of the Aboveground Storage Tank Act, state officials should have solicited feedback from all affected parties, including environmentalists, instead of only vetting proposals with business and industry representatives.”

Of course, some of these things are about communications and public relations, and others are about process.  In some other ways, the report was not quite as honest or at least it appeared to be still trying to put the best possible spin on this. For example, as I wrote in our news story:

… The report said that “with the abundance of chemical and manufacturing facilities in the Kanawha Valley,” many of them near “critical waterways,” a more efficient way of managing required disclosure forms about toxic chemical inventories at those operations should be implemented.

The report asserts that, while the state had established a “comprehensive statutory framework” in 1984 to regulate underground chemical storage tanks, aboveground tanks were not regulated “under an applicable federal or state permit” and tanks like the MCHM tanks at Freedom Industries “escaped government oversight.”

The report said that the new storage tank law “will help address these shortcomings, will increase public safety significantly, and will help protect the environment.”

The truth is, state and local officials were given information that showed Freedom was storing these chemicals just upstream from the region’s drinking water intake. But nobody — including members of the local media, like me — bothered to look at or use this information in any meaningful way (see here and here). So while it’s certainly true that officials need “a more efficient way of managing” chemical inventory disclosures, it’s also quite an understatement about the failure to use available tools to prevent or respond to a disaster.

And the truth is that the Freedom site wasn’t “not regulated”, but — as DEP Secretary Randy Huffman has explained previously — they were “underregulated.”  And in fact, federal authorities, in charging Freedom officials with Clean Water Act crimes, have said that the company’s failure to comply with a DEP-issued permit was a “proximate cause” of the MCHM spill. It was DEP’s job to enforce that permit, to make sure Freedom complied.

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Will lawmakers get serious about gas industry safety?

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Well Explosion

Fire crews from Marshall County battle a gas well fire in  Moundsville, WV, Monday June 7, 2010. The explosion and resulting fire sent seven people to area hospitals including three workers who were flown to a Pittbsurgh burn center. (AP Photo/The News-Register, Kef Howard)

A committee of West Virginia lawmakers spent some time over the last two days talking about a growing, but not very well publicized, issue facing the state as the Marcellus Shale gas-drilling boom continues. We’ve written about it before:

As West Virginia’s natural gas industry booms, more workers are paying the price as deaths on the job are increasing, according to new federal government data.

Thirteen workers in the state’s oil and gas industry died during the five-year period between 2008 and 2012, according to the data from the U.S. Department of Labor’s Bureau of Labor Statistics. That’s more than double the five workers who died in the industry during the previous five-year period, between 2004 and 2008, according to the bureau.

The increase in worker deaths came as natural gas production in West Virginia — fueled by the rush to tap into the Marcellus Shale reserves — also more than doubled, according to data from the U.S. Energy Information Administration.

During an initial meeting on Tuesday, James Martin, chief of the state Department of Environmental Protection’s Office of Oil and Gas, told the Joint Committee and Labor and Worker Safety Issues that, despite a mandate in the 2011 National Gas Horizontal Well Control Act for operators to submit safety plans to DEP, state officials leave worker safety mostly up to the U.S. Occupational Safety and Health Administration:

Our focus is on the environmental side of it, so that’s what we look to. Obviously, there is overlap. The same issue could result in both safety and environmental concerns. But our focus is on the environment.

Charleston lawyer Tammy Bowles-Raines, testifying for the West Virginia Association for Justice, told the committee that injuries and deaths from being struck by moving equipment, explosions, and transportation accidents are on the rise in the state’s Marcellus boom:

Worker safety in the oil and gas industry is a growing concern.

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Industry starts push for ‘voluntary’ safety measures

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Photo by Tom Hindman, Charleston Daily Mail, via Associated Press

It was interesting this week to start seeing some media coverage of the chemical industry’s efforts to begin pushing its voluntary “Responsible Care” program, timed oddly right as a new West Virginia commission is to take up, among other things, the U.S. Chemical Safety Board recommendation for a new local chemical accident prevention program.

For example, WCHS-TV did a story on a chemical industry meeting in which on-air personality Kennie Bass served on a panel that discussed the fallout from the January chemical spill at Freedom Industries:

The West Virginia Manufacturers Association and three national chemical industry trade groups teamed up to present the forum, which focused on government and media response to the freedom industries water disaster.

The panelists included West Virginia Department of Environmental Protection Director Randy Huffman, Kanawha County Homeland Security and Emergency Management Director Dale Petry and Eyewitness News Reporter Kennie Bass, representing media who covered the water crisis.

Topics included how the local and state first responders dealt with the water shortage, how information was gathered and reported by journalists and what we have learned in case a similar disaster happens.

Dean Cordle, president and CEO of AC & S incorporated said it is part of the industries “responsible care.”

“The purpose of today’s event is to bring together the community leaders and industry and talk about safe practices that are currently being employed in the chemical industry,” Cordle said. “And to broaden our program called responsible care to include some of those smaller companies that can benefit from practices that we employ.”

I had heard of this event and checked in last week, but was told by the American Chemistry Council, one of the co-sponsors, that it was not open to the media.

Interestingly enough, Dean Cordle of AC&S Inc. showed up at a meeting of the Daily Mail’s editorial board that produced this story:

Chemical industry executives advocated for industry-driven safety practices during a workshop hosted by the West Virginia Manufacturing Association on Monday.

The American Chemistry Council (ACC), the National Association of Chemical Distributors (NACD) and the American Institute of Chemical Engineers’ Center for Chemical Process Safety joined state agencies and community leaders in Charleston for a day of discussion and workshops aimed at encouraging companies to improve safety practices by joining industry safety cooperatives.

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Chemical Safety Board in turmoil – again

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The U.S. Chemical Safety Board is under fire from all sides — again — and it appears that inner turmoil is making it even harder for this small government agency to do its terribly important job.

Yesterday, a House of Representatives committee released a report and heard testimony that detailed problems at the CSB. Headlines were using words like “disarray” to describe the situation.  The Hill described the basic situation this way:

 House Oversight Committee Chairman Darrell Issa (R-Calif.) called Thursday for the chairman of the Chemical Safety Board (CSB) to resign, an opinion shared by a bipartisan group of members on the oversight panel.

Moure FinalThe call came during a hearing on allegations of dysfunctional management by Chairman Rafael Moure-Eraso and accusations that he and his staff sought to silence whistleblowers and others who disagreed with him.

“You really need to ask whether or not in your last year, you can really undo the damage of your first five,” Issa said.

Rep. Gerry Connolly (D-Va.) said he had “serious questions about your fitness to hold your job.”

“It is clear that there are serious management problems that need to be addressed,” said Rep. Elijah Cummings (Ga.), the panel’s top Democrat.

At the center of the hearing were allegations from CSB staff that an employee of the Office of Special Counsel had told top CSB officials the identifies of whistleblowers in 2012. The Environmental Protection Agency’s Office of the Inspector General, which also has authority over the CSB, investigated the issue, but agency staff did not provide requested materials.

The basic allegations are covered in this report, written by the staff of the Republican-controlled committee. There’s also additional testimony from Moure-Eraso here and from board member Mark Griffon here.  Former board member Beth Rosenberg, who resigned in late May over problems inside the agency, testified about what the “chilled atmosphere” at the CSB and about what she said was a “lack of accountability” and a “lack of transparency” at the board. Testimony described a toxic atmosphere among board members and top agency staff. Rosenberg put it this way:

There are no opportunities for staff and board members to discuss issues openly. Those whose opinions differed from senior leadership or the chair are marginalized and vilified. At the CSB, disagreement is seen as disloyalty. Criticism is not welcome and staff fear retaliation.

Testimony and the GOP staff report raise serious issues — things like the potential outing of agency whistle-blowers, major votes and decisions all being made in secret instead of in public meetings, and stonewalling an Inspector General’s investigation.  Issa, the Republican committee chairman, said:

Rather than addressing experienced investigators’ concerns about agency mismanagement, Chemical Safety and Hazard Investigation Board leadership has stifled internal debate and retaliated against agency whistleblowers.  Mismanagement under the current CSB leadership has created a hostile work environment, distracting the Board from fulfilling its core mission to investigate industrial accidents and issue incident safety reports in a timely manner.  Real reform is needed at the CSB to restore collegiality, staff morale, and the integrity of the agency.

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Obama OSHA again delays combustible dust rule

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Barack Obama

We’ve written many times (see here, here and here) about the dangers of combustible dust, and the need for the U.S. Occupational Safety and Health Administration to move forward with an industry-wide rule to prevent needless deaths and injuries — like the one that claimed three lives at AL Solutions in New Cumberland, W.Va., back in December 2010.

But it probably should come as no surprise that the latest Obama administration regulatory agenda — issued late last week, just before a holiday weekend — shows absolutely no progress on this rulemaking.

The last we heard, in December 2013, OSHA still hasn’t convened a promised panel to consider the rule’s potential impacts on small businesses.  And OSHA doesn’t plan to do so until at least April 2014. But in its new regulatory agenda, the administration now says it won’t even convene that small business panel until December 2014.

As I wrote the last time the regulatory agenda came out six months ago …

… The combustible dust rule — a proposal the U.S. Chemical Safety Board listed as its first-ever “most wanted” safety reform by OSHA — continues to go nowhere.