Sustained Outrage

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

Some readers may have forgotten by now about the congressional mandate that the National Academy of Sciences study the potential for Bayer CropScience to rid its Institute chemical plant of its huge stockpile of methyl isocyanate, or MIC, the deadly pesticide ingredient that caused the deaths of thousands of people in Bhopal, India, back in December 1984. In some ways, the need for the study ended a year ago, when Bayer announced that it was not going to restart the MIC unit out in Institute.

But by then, a national panel of experts appointed by the academy’s National Research Council had already begun its work. The focus of the study shifted slightly. It still included a look at the Institute plant and MIC, but used that framework for a broader examination of how chemical companies make decisions about what products they make and use, and to try to figure out better ways to have those decisions lead to less risk for workers and for people who live near manufacturing facilities.

Well, this morning the National Research Council report is out, and the broad conclusion is, basically, that chemical companies and the agencies that regulate them need to do more to ensure inherently safer processes are fully considered and more frequently used.  As the report issued this morning explains, tools that would help companies properly consider risks and make such decisions “have yet to take hold in the chemical process industry.” The report goes on:

Key obstacles to their use include lack of familiarity with the tools among chemical process industry decision makers and the fear that the methods are either too simplistic or too costly to use … The use of these techniques could benefit not only the communities at risk from safety breaches, but also the industries themselves, as decision making techniques can help with the identification of profitable safety solutions that otherwise could be overlooked.

Regarding Bayer and the Institute plant specifically, a news release summarizing the new report had this to say:

The committee found that Bayer did incorporate some aspects of risk reduction that are associated with inherently safer process principles. However, the inherent safety considerations were not explicitly stated in Bayer’s process safety management guidelines and were dependent on the knowledge base of the individual facilitating the particular activity, such as a process hazard analysis. Moreover, Bayer and the previous owners of the plant performed hazard and safety assessments and made business decisions that resulted in MIC inventory reduction, elimination of above ground MIC storage, and adoption of various measures, but these assessments did not incorporate some of the key principles of the inherently safer process.

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Here’s the latest, just in from the AFL-CIO:

Ninety-five workers were killed in West Virginia in 2010, according to a new AFL-CIO report, “Death on the Job: The Toll of Neglect.” In 2010, West Virginia had a worker fatality rate of 14.1 per 100,000 workers, one of the highest in the country. This compares with a national fatality rate of 3.6 per 100,000 workers. The 2010 Upper Big Branch mining disaster where 29 miners died contributed to West Virginia having the highest rate. North Dakota, South Dakota, Wyoming and Alaska were among states with the highest workplace fatality rates while New Hampshire, Massachusetts and Rhode Island were states with the lowest rates.

The report notes that in 2010, there were 4,690 workplace deaths due to traumatic injuries and more than 3.8 million workers across all industries, including state and local government, who experienced work-related injuries and illnesses. As a comparison point, in 2009, 4,551 people died on the job.

 AFL-CIO President Richard Trumka said:

While we have made great strides in making our workplaces safer, too many women and men in this country and around the world continue to be hurt or killed on the job. Workers continue to be exposed to well-known hazards that are poorly regulated and inadequately controlled. The Obama administration has moved forward to strengthen protections with tougher enforcement, but business groups and Republican legislators have launched a major assault on regulations to protect people on the job. As we move forward to build an economy for our future, it’s important that we commit together to developing and issuing the kinds of rules critical to ensuring the safety of all working people.

That part about the Obama administration moving forward to strengthen protections for workers is especially interesting, given the recent congressional hearing that revealed the current administration’s real record on such matters, as Mike Elk reported for In These Times:

The April 19 Senate hearing, titled “Time Takes Its Toll: Delays in OSHA’s Standard-Setting Process and the Impact on Worker Safety,” focused on why it takes so long for workplace safety rules issued by OSHA to be implemented. It coincided with the release of a report by the Government Accountability Office (GAO).

 The GAO report found that between 1981 to 2010, the time it took OSHA to develop and issue safety and health standards ranged from 15 months to 19 years, averaging more than seven years. The report found it took OSHA 50 percent longer than it takes the EPA to issue new rules, nearly twice as long as it takes the Department of Transportation and nearly five times as long as it takes the SEC. Twenty-five percent of all OSHA rules took more than 10 years to be issued, the GAO said. The increasingly slow process has limited the number of OSHA rules implemented (PDF) in recent years.

The Reagan Administration issued new rules at a rate four-times faster than the current administration,” said Senate Committee on Health, Education, Labor and Pensions Chairman Tom Harkin (D-Iowa), whose father, a coal miner, died of black lung. “I suspect that the lack of new rules is at least partly the result of relentless external pressure from business lobbyists and anti-labor groups. These groups pressure both OSHA and the OMB [Office of Management and Budget] to create delays that costs lives.”

Of course, we’ve reported on this before (see here and here), and the latest move by Obama that has at least some worker safety advocates outraged was detailed by Rena Steinzor on the Center for Progressive Reform’s blog last week:

Yesterday evening, when press coverage had ebbed for the day, the Department of Labor issued a short, four-paragraph press release announcing it was withdrawing a rule on child labor on farms. The withdrawal came after energetic attacks by the American Farm Bureau, Republicans in Congress, Sarah Palin, and—shockingly—Al Franken (D-MN).

Last year, Secretary of Labor Hilda Solis said: “Children employed in agriculture are some of the most vulnerable workers in America.” “Ensuring their welfare is a priority of the department, and this proposal is another element of our comprehensive approach.”

The Administration pledged to protect young workers in dangerous jobs, and now they’ve thrown that pledge out the window.

I admit that I find the political calculus underlying these Pander Games confusing.  Granted, the Farm Bureau is capable of getting a lot of people in the Corn Belt riled up about this latest government “intrusion” on the “freedom” to have their kids help them around the homestead that has been in the family for generations.  But the rule did nothing of the sort. The argument was entirely disingenuous.  At some point, the President has to stand and deliver, explaining that regulations that protect children from gruesome injuries and death are not evidence of government run amok, but instead just plain common sense.  Killing the rule will never win him Farm Bureau financial support, it’s the wrong thing to do, and it offends all the voters who know kids who have died or suffered grievous injuries in agricultural work.

CSB finds problems at DuPont plant in Buffalo, N.Y.

Just seven months after a devastating report on workplace safety practices at DuPont Co.’s chemical plant in Belle, W.Va., the U.S. Chemical Safety Board today is releasing another report about DuPont, this one detailing problems that led to a November 2010 explosion that killed one and injured another contract welder at a DuPont plant outside of Buffalo, N.Y. CSB officials said the explosion was caused by the ignition of flammable vinyl fluoride inside a large process tank, a hazard which had been overlooked by DuPont engineers:

The CSB found that that sparks or heat from the welding, which took place on top of the tank, most likely ignited the vapor. The CSB said a primary cause of the blast was the failure of the company to require that the interior of storage tanks – on which hot work is to be performed ­– be monitored for flammable vapor. A proposed recommendation urges DuPont to require monitoring the inside of storage before performing any hot work, which is defined as welding, cutting, grinding, or other spark-producing activities.

Noting the CSB issued a safety bulletin on the dangers of hot work in March 2010, CSB Chairperson Rafael Moure-Eraso said:
I find it tragic that we continue to see lives lost from hot work accidents, which occur all too frequently despite long-known procedures that can prevent them. Facility managers have an obligation to assure the absence of a flammable atmosphere in areas where hot work is to take place. Explosion hazards can be eliminated by testing inside tanks as well as in the areas around them.

The accident occurred at the DuPont chemical plant in Tonawanda, a suburb of Buffalo, which employs approximately 600 workers. The facility produces polymers and surface materials for countertops, sold under the trade names Tedlar® and Corian®. The process for making Tedlar involves transferring polyvinyl fluoride (PVF) slurry from a reactor through a flash tank and then into storage tanks. The tanks were also inter-connected by an overflow line. The CSB found the company erroneously had determined that any vinyl fluoride vapor that might enter the tanks would remain below flammable limits.

Days before the incident the process had been shut down for tank maintenance due to corrosion on tank agitator supports. The fill lines were locked out for safety. Tanks 2 and 3 were repaired and the process restarted, but work on tank 1 was delayed because the necessary parts were not available. Finally, a contract welder and foreman were engaged to repair the agitator support atop tank 1. Although tank 1 remained locked out from the main process, the overflow line remained open which connected tank 1 to tanks 2 and 3. The CSB determined that flammable vinyl fluoride flowed through the overflow line into tank 1 and accumulated to explosive concentrations. Investigators found that while a facility hot work permit was issued for the task, the DuPont personnel who signed it were not sufficiently knowledgeable about the Tedlar chemical process.

Although DuPont personnel monitored the atmosphere above the tank prior to authorizing hot work, no monitoring was done inside the tank to see if any flammable vapor existed there. The CSB investigation found the hot work ignited the vapor as a result of the increased temperature of the metal tank, sparks falling into the tank, or vapor wafting from the tank into the hot work area.

The explosion blew most of the top off the tank, leaving it and the agitator assembly hanging over the edge. The welder died instantly from blunt force trauma, and the foreman received first-degree burns and minor injuries.

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Details of Monsanto dioxin settlement revealed

A view of the Monsanto plant in Nitro,  1980.

Details of the big dioxin class-action settlement between Monsanto Co. and residents of the town of Nitro have been pretty scarce since the Gazette’s Kate White broke the news about the deal two weeks ago. Broad outlines of the agreement were discussed in a court hearing, but those mostly recited what was included in a news release issued by Monsanto officials.

But now, the Gazette has revealed much more information about the settlement in this new story — and we’ve posted copies of the medical monitoring settlement and the property cleanup settlement online.  We’ve also posted a legal brief in which lawyers for current and former Nitro residents outline the terms of the deal and urge its approval by the court. Among other things, Charleston attorney Stuart Calwell argues:

The Settlement Agreements provide for ample funding to accomplish its goals. The Funds created by the Settlement Agreements will pay for medical testing and residential cleanup for potentially thousands of West Virginians. Plaintiffs have sought two remedies in this litigation: medical monitoring and property cleanup. The Class Settlements provide both.

One reason that details of the settlement have been hard to come by is that the two judges who have handled the case — Putnam Circuit Judge O.C. Spaulding and Mercer Circuit Judge Derek Swope (appointed by the Supreme Court to hear the case after Spaulding recused himself) — have imposed broad gag orders on the lawyers for both sides.  The local circuit clerk hasn’t made it any easier. The Gazette had to file a formal Freedom of Information Act request to get electronic copies of the settlement documents that we’ve posted online (the clerk wanted to charge us $1 per page for the .pdf files, an amount that we didn’t believe was “reasonably calculated to reimburse it for its actual cost in making reproductions of such records” under the state FOIA).

Interestingly, on Monday, one lawyer in the case filed this motion asking Judge Swope to lift the current gag order. Attorney Tom Urban has clients who are members of the class covered by the settlement, but his firm is not the “class counsel” and didn’t work out the settlement. Urban has raised some questions about the deal, and told the judge that, with the settlement, the reasons for any gag order have evaporated:

The original purpose of the gag order was to ensure that the prospective jury would not be tainted by information that would affect their ability to properly exercise its role in an unbiased manner, and the order was subsequently expanded further on the eve of jury selection. Now that this Court released the jury during a hearing on February 24, 2012, the exercise by counsel and others under the First Amendment to discuss the settlement with all interested persons, including absent class members, the public, and the press, no longer caries with it the substantial likelihood of materially prejudicing those proceedings.

As a result, those various gag orders must be lifted or they run afoul of the First Amendment and themselves risk prejudicing these proceedings by inhibiting communication by all sides concerning the fairness, reasonableness, and adequacy of the proposed class settlement.

OSHA doesn’t want to talk about combustible dust

Four years ago today, a huge explosion and fire at the Imperial Sugar refinery northwest of Savannah, Ga., killed 14 people and injured 38 others. Fourteen of the injured suffered serious and life-threatening burns. The explosion was fueled by massive accumulations of combustible sugar dust throughout the packaging building. After the incident, here was one fascinating paragraph included in a U.S. Chemical Safety Board press release on the board’s investigation:

The CSB report said that the sugar industry was familiar with dust explosion hazards at least as far back as 1925. Internal correspondence dating from 1967 showed that Port Wentworth refinery managers were seriously concerned about the possibility of a sugar dust explosion that could “travel from one area to another, wrecking large sections of a plant.” Precursor events included a 1998 explosion at Imperial’s plant in Sugar Land, Texas; an explosion at the Domino Sugar plant in Baltimore in November 2007; and two sugar dust explosions in the 1960’s that killed a total of ten workers. However, Imperial management did not correct the underlying causes of the sugar dust problem at the Port Wentworth facility, where workers testified that spilled sugar was knee-deep in places on the floor, and sugar dust had coated equipment and other elevated surfaces.

The report marked one of many times that the CSB has recommended that the U.S. Department of Labor’s Occupational Safety and Health Administration adopt a broad industry rule to protect American workers from all sorts of combustible dust. As explained in my previous post, Obama’s OSHA puts protecting workers from dangers of combustible dust on back burner:

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.

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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)

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Long story of Monsanto and dioxin continues


Five of the plaintiffs in the 1984 dioxin lawsuit against Monsanto Co. in Nitro stand outside the courtroom. Left to right: John Hein, James Ray Boggess, June Martin, Gene Thomas and Charles Farley. Each man sued Monsanto for $4 million each, alleging that exposure to chemicals at the Nitro plant threatened their lives.  After an 11-month trial, jurors awarded $200,000 to Hein, but ruled against the other workers. Gazette file photo.

Over the last few weeks, the Gazette’s Kate White and I have been covering the run-up to the big class-action lawsuit trial against Monsanto Co. over alleged contamination of the town of Nitro by the company’s former chemical-making operations there.

Jury selection began last week, after another mediation effort failed. Once a jury is picked and trial begins, jurors will be asked to award thousands of current and former residents medical monitoring to allow early detection of diseases potentially linked to dioxin exposure. Several years ago, we published a lengthy Sunday story that explains in much more detail the allegations in the lawsuit (subscription required) about how Monsanto polluted the town.

As the photo above and Sunday’s story explained, this is certainly not the first major legal action to focus on Monsanto and dioxin:

An early sign of dioxin’s effects came in March 1949. A massive explosion rocked the Nitro plant when a pressure valve blew on a 2,4,5-T cooking container. More than 220 workers got sick.

Years later, more than 170 workers sued Monsanto, alleging dioxin exposure at the plant had made them ill. Cases involving seven of the workers went to trial in federal court in 1984.

After an 11-month trial, a jury awarded one of the workers, John Hein, $200,000 for bladder cancer he contracted because of exposure at the plant to another chemical, para-aminobiphynol, or PAB.

Jurors found that dioxin had made the other workers sick and that Monsanto had not acted diligently in seeking to determine the possible impact of exposure on worker health.

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Fatal fire at WTI reminds of waste industry dangers

The holiday season wasn’t so happy for the families of two workers at the WTI hazardous waste incinerator in East Liverpool, Ohio, across the river from Chester, W.Va.  A week before Christmas, a chemical fire a the facility — now officially known as Heritage-WTI Inc. — left one worker dead and another seriously burned.

The U.S. Chemical Safety Board said in a statement:

According to company officials a flash fire occurred when workers were splitting a large solid waste drum of hazardous flammable inorganic material into smaller storage drums … Unfortunately accidents at hazardous waste processing facilities are all too common.

The CSB investigated a major fire in 2006 at the Environmental Quality Company, a hazardous waste facility located in Apex, North Carolina, which resulted in the evacuation of thousands of residents for two days. In an April 2008 report, the board explained:

In addition to the EQ incidents, the CSB found 21 other fire and chemical release incidents9 at hazardous waste facilities in the United States in the last five years. Fourteen of the incidents involved fires and/or explosions and seven were release-only incidents. These incidents resulted in two fatalities, 16 injuries, and eight community evacuations, shelter-in-place events, or transportation disruptions.

The CSB also investigated a 2009 explosion and fire at the Veolia ES Technical Solutions L.L.C. facility in West Carrollton, Ohio. The accident occurred when flammable vapor was released from a waste recycling process, ignited, and violently exploded. The blast seriously injured two workers and damaged 20 nearby residences and five businesses.

As the board explained in a statement last week:

As a result of these two investigations, the Chemical Safety Board issued recommendations to the Environmental Technology Council (ETC), a hazardous waste industry trade group. Specifically, one of the recommendations is to petition the National Fire Protection Association (NFPA), a developer of U.S. fire prevention codes, to issue a standard specific to hazardous waste treatment, storage and disposal facilities. The standard would provide guidance to prevent the occurrence of fires, explosions, and releases at these types of facilities. This recommendation has still yet to be implemented.

OSHA fines Wheeling-area firm more than $60,000

Here’s the latest from the U.S. Occupational Safety and Health Administration:

The U.S. Department of Labor’s Occupational Safety and Health Administration has cited Elm Grove-based Uwanta Linen Supply Inc. for 21 safety and health violations that exposed workers to a variety of hazards. Proposed penalties total $62,400.

OSHA said that eighteen serious safety and health violations, with penalties of $61,200, included:

— Failing to evaluate the facility to determine if any areas were permit-required confined spaces

— Failing to properly guard floor holes

— Not developing written energy control procedures for machines with multiple energy sources; mount portable fire extinguishers, perform annual maintenance checks on them and train employees on their use

— Failing to examine forklifts before placing them in service

— Failure to conduct an exposure determination for workers with exposure to bloodborne pathogens

— Not providing  fall protection for employees working on an elevated platform using forklifts

The agency also said the company failed to:

… Provide personal protective equipment; provide a suitable facility for quick drenching or flushing of the eyes and/or body for workers exposed to injurious corrosive materials; provide a hand-washing facility readily accessible to employees; provide appropriate safety and machine guarding; provide hepatitis B vaccines to employees potentially exposed to bloodborne pathogens; ensure that all work areas were clean and in an orderly and sanitary condition; ensure that an emergency exit door was unlocked and unimpeded; ensure that electrical equipment was free from recognized hazards; keep the area around a circuit breaker panel free from materials; attach grounded conductors to terminals or leads so as to reverse polarity; effectively close knockouts; properly illuminate work areas for employees; properly illuminate each exit sign; establish a written exposure control plan to eliminate or minimize employee exposure to bloodborne pathogens; and institute an effective hearing conservation program.

The violations were cited following OSHA inspections last May (see here and here).  Uwanta Linen Supply, a commercial laundry that employs about 16 workers at its Elm Grove location, has 15 business days from receipt of the citations to comply, request an informal conference with the OSHA area director, or contest the citations and proposed penalties before the independent Occupational Safety and Health Review Commission.

OSHA Charleston area director Prentice Cline said:

By disregarding OSHA’s standards, this company is leaving its employees vulnerable to hazards that could cause serious injury or even death. It is imperative that Uwanta Linen Supply address the cited violations immediately.

Worker safety reforms crawl along at Obama OSHA

President Barack Obama pauses during his news conference in the East Room of the White House in Washington, Thursday, Oct. 6, 2011. (AP Photo/Pablo Martinez Monsivais)

It was baffling earlier this week to listen in to a House subcommittee hearing as Republican lawmakers repeated over and over their mantra that workplace safety regulations kill jobs. That’s because their statements that the current U.S. Occupational Safety and Health Administration was moving too quickly on too many regulations just didn’t seem to mesh with what I’ve seen happening at OSHA (see previous posts here, here and here).

In fact, OSHA chief David Michaels himself testified to the committee:

Over the past 15 years, OSHA has, on average, issued only a few major standards each year, with some periods in which no major standards have been issued.

In fact, over the past year, OSHA has issued only two major standards: one protecting workers from hazards associated with cranes and derricks, and another standard to protect shipyard workers. Both took years to develop.

So I was very interested to read this new report from the folks at Public Citizen, who explained:

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.

Justin Feldman, worker health and safety advocate with Public Citizen and author of the report, said:

The requirements on OSHA have nearly paralyzed the agency.  As a result, OSHA cannot adequately protect workers from toxic chemicals, heat stress, repetitive use injuries, workplace violence and many other occupational dangers. Inadequate regulation imposes tremendous costs on workers, who may be forced to pay with their health or even their lives.