In its short history dating back to 1998, the U.S. Chemical Safety Board has conducted more than 100 investigations of industrial chemical explosions, unplanned toxic releases, spills and other incidents. Some of the disasters made the headlines, such as the 2005 explosion at the BP refinery in Texas City, TX which killed 15 workers, but others garnered much less public attention. Accompanying the CSB's investigation reports are detailed recommendations made to the companies involved, as well as trade associations, consensus standard-setting groups, unions, the US EPA and Occupational Safety and Health Administration (OSHA). About 76 percent of all CSB recommendations have been acted upon by the recipients and are considered "closed" by the CSB. The agency has been criticized, however, for not doing more to press recipients that have failed to act on specific recommendations. The CSB plans to publicly take up this matter later this month. It's target: OSHA.
The CSB announced in the Federal Register plans for a July 25 public meeting where the Board members will discuss seven recommendations made to OSHA, yet not acted upon. They relate to chemical explosions and other incidents that occurred between 2001 and 2010. Currently, the CSB lists their status as "Open/Awaiting Agency Response," but will consider reclassifying them as "Open- Unacceptable Response.” It's rare that the Board designates an open recommendation to another federal agency as "unacceptable."
The recommendations largely address deficiencies in OSHA's process safety management standard and rules related to combustible dust. They stem from the following disasters:
- Motiva Enterprises sulfuric acid tank explosion (Delaware, July 2001)
- West Pharmaceuticals dust explosion (North Carolina, January 2003)
- CTA Acoustics dust explosion (Kentucky, February 2003)
- BP Refinery explosion (Texas, March 2005)
- Hayes-Lemmerz dust explosion (Indiana, September 2005)
- Imperial Sugar dust explosion (Georgia, February 2008)
- ConAgra Slim Jim plant explosion and ammonium release (North Carolina, June 2009)
- Kleen Energy natural gas explosion (Connecticut, February 2010)
- Hoeganaes flash fire (Tennessee, January 2011)
Why hasn't OSHA acted on the CSB's recommendations for regulatory improvements?
I chalk it up to a dysfunctional regulatory system for worker safety protections. A GAO report issued last year explained that it took nearly eight years for OSHA to issue a new health or safety standard. As a result, most OSHA rules date back decades. The Obama Administration's OSHA has only issued three major rules and those were in the pipeline for years.
There are legal procedure and analytical hurdles that slow the pace of rulemaking at OSHA, but the biggest obstacle, in my opinion, is an anti-regulatory climate that gets worse each year. It festers on Capitol Hill, many industry trade groups, and conservative think tanks, and has permeated public perception of government overreach. Many Members of Congress label all regulations as "job-killing," even those destined to protect people's lives.
To my disappointment, the Obama White House has engaged in its own anti-regulatory efforts. Its Office of Management and Budget has held up five worker safety and miner safety proposals or final rules for more than a year, under the banner of "interagency review." OSHA's proposed rule to protect workers from respirable crystalline silica has been "under review" for almost 2 1/2 years. That's a record---a sorry one at that---when it comes to OSHA rules.
With a dozen worker safety rules already stuck in OSHA's regulatory pipeline, is it really a surprise that the agency has failed to act satisfactorily to the CSB's regulatory recommendations? Not that the CSB isn't correct in making them. I shudder to think that the CSB would resort to only issuing recommendations that it thinks will be easily fulfilled.
I'll be pleased if the CSB moves to label the outstanding OSHA recommendations as "Open-Unacceptable." I hope it compels conversations on Capitol Hill among lawmakers who recognize the need for strong worker safety protections. I especially hope it compels the Obama Administration, particularly the recently confirmed regulatory czar Howard Shelanski, to engage with OSHA's leadership to streamline OSHA rulemaking. Surely there are changes that can shave a couple of years off the process.
The CSB's July 25 public meeting will be an excellent opportunity to discuss the value of CSB recommendations and, as important, the need to have them implemented. For those unable to participate in person, the CSB says it will have a conference line available to listen in.