Simulation of the January 2011 metal dust flash fire that killed Wiley Sherburne in the Hoeganaes plant US Chemical Safety Board
In Gallatin, the fire department's senior inspector visited the Hoeganaes plant in May 2011—after the first two fires but before the third. He noted a list of concerns, including inadequate emergency lighting and the need to keep exit routes clear. He didn't mention combustible dust. Department inspectors eventually noted significant dust levels this past January and March. Asked if inspectors ever brought up combustible dust with Hoeganaes before last year's accidents, Fire Chief William Crook said, "If they have, I'm not aware of it."
The CSB found a similar pattern after accident investigations in Indiana and North Carolina: Fire officials had missed dust problems in inspections before deadly accidents.
Recognizing dangers that could lead to dust fires and explosions also can be a problem for companies and their insurers. In investigations of four dust explosions that killed 28 workers, the CSB found insurers had missed serious dust hazards during audits in each case.
In Gallatin, the insurer, Allianz, did note the potential risks from iron dust in a 2008 audit. Hoeganaes commissioned testing in 2009 and 2010 that showed its dust was combustible. In August 2010, Hoeganaes hired a company to clean up the dust, according to a report by the state inspector examining the January 2011 accident. But, the report notes, "it was apparent that the employer was not ensuring clean up was maintained through good housekeeping practices between these cleanings." Piles of dust up to four inches thick sat on equipment throughout the plant, the inspector found.
Such breakdowns point to the need for an OSHA standard, which could lead to "broader recognition and the potential for stronger enforcement," said Guy Colonna, manager of the NFPA division that oversees the association's combustible dust standards.
Still, enforcement by OSHA isn't a perfect solution. The CSB's 2006 study found that OSHA inspectors weren't adequately trained to recognize dust hazards. In a statement, OSHA said it developed a three-and-a-half-day session to train its inspectors to recognize combustible dust hazards in December 2007. But the agency can get to only a fraction of the plants that may have dust problems.
Jamie Butler was severely burned in the explosion at the Imperial Sugar refinery in 2008. Chris Hamby/iWatch
Since October 2007, OSHA has been targeting plants that may have dust problems through a special enforcement program. During that time, the agency and its state counterparts have conducted more than 2,800 inspections. But, asked for an estimate of the number of plants that meet the criteria for inspection under the program, OSHA said the total was likely "in tens of thousands."
After the fires in 2011, state regulators drew on a variety of standards in an attempt to cite Hoeganaes. They alleged electrical safety violations, shoddy maintenance of the hydrogen pipe that leaked in May, and an inadequate emergency response plan, for example. They accused the company of allowing dust to build up throughout the plant and failing to train workers on the dangers posed by dust.
Hoeganaes contested every citation. Among the legal arguments the company has raised: State officials are trying to enforce a combustible dust rule that doesn't exist.
"Past time to issue a standard"
Four years ago, Jamie Butler sat on a curb outside the burning wreckage of the packing building at the Imperial Sugar refinery in Port Wentworth, Georgia, an industrial hub near Savannah. His brother sat beside him. They'd escaped one of the worst dust explosions in US history.
There had been a ball of flame, Butler recalled, and then fire everywhere—on the walls, on machines, in the air. Sugar dust had exploded in a conveyor belt, then triggered blasts throughout the plant. Dust that had built up over the years fueled the explosions and rained down on Butler and his coworkers.
Butler had found a hole that had been blown in the wall and made it, with his brother, to the curb outside. They talked for a minute or two, before emergency responders loaded Butler into one ambulance and his brother into another. "That was the last time I ever saw my brother," Butler said.
The disaster killed 14 people—including Butler's brother and uncle, a longtime plant employee—and left dozens burned. Butler, now 29 with three children, remained in a coma for months; he has severe burns on his head, face, legs, and arms. "Since I got burned, I'll be in the hospital on a regular basis, just sick, throwing up, dehydrated," he said recently, sitting in his lawyer's riverfront office. "I don't sweat how I used to sweat."
In the decade after new dust regulations took effect, deaths in grain dust explosions dropped by 70 percent and injuries by 60 percent.
The blast was the type of catastrophe that can spur reform. Congress held a hearing, and then-Illinois Sen. Barack Obama said in a statement, "It is past time to issue a standard to prevent these kinds of accidents."
Even before Imperial Sugar, the CSB had investigated a series of deadly dust accidents and recommended in 2006 that OSHA issue a rule to protect workers from dust fires and explosions. After investigating the disaster in Port Wentworth, the board again urged OSHA to act.
This time, OSHA appeared to be listening. It launched a special enforcement program targeting companies with unaddressed dust problems. In April 2009, the agency announced it was starting the rule-making process.
"We felt that our efforts had paid off," CSB chairman Moure-Eraso said recently. "And then we wait and we wait. And there are more accidents; there are more fatalities. And this process continues, and it seems to be never-ending."
Long rule-making processes have become the norm for OSHA. For the 58 significant standards the agency has issued since 1981, the average time from beginning the process to finalizing the rule was almost eight years, a recent study (PDF) by the Government Accountability Office found.
To issue a significant new rule, federal agencies must navigate a complicated process that includes multiple rounds of review—both internally and at the White House's budget office—and public comment. But it's even harder for OSHA, which must show that a proposed rule is both technically and economically feasible for every industry that would be affected. If a rule could affect a significant number of small businesses, OSHA must convene a panel and allow them to raise objections to an unpublished rule draft. And finally, the agency is particularly vulnerable to legal challenges after issuing a standard. In general, government agencies must prove to a judge that a rule isn't arbitrary or an abuse of discretion. OSHA, however, must show its rule is supported by "substantial evidence in the record considered as a whole"—a much higher standard.
All of this means addressing combustible dust is a mammoth task—and one that faces significant industry pushback.
The National Cotton Council told OSHA many of its members shouldn't be included and challenged the accuracy of the agency's list that included past cotton dust fires and explosions. The American Home Furnishings Alliance insisted in written comments that "no federal intervention in our industry is justified or required. The American Chemistry Council has taken a harder line, arguing that a new rule is entirely unnecessary. "We believe that the accidents that have occurred might have been prevented if current OSHA regulations and relevant combustible dust consensus standards had been followed and enforced," the council wrote to the Center for Public Integrity.
In January 2003, the West Pharmaceutical Services plant in Kinston, North Carolina, exploded when a fine plastic powder ignited. Six workers were killed and dozens were injured. US Chemical Safety Board
Lessons from a previous dust fight
Many of the arguments over the dust rule echo those made 30 years ago during a tussle that led to a standard now widely considered a success story. In the late 1970s, a series of deadly explosions at grain elevators and similar facilities attracted national attention. OSHA announced in 1980 that it was considering a rule to regulate the handling of grain dust.
Large industry trade groups and small grain elevator operators objected vociferously. The National Grain and Feed Association called the rule "unwarranted" in comments to OSHA and said it "could have a substantial economic impact on the grain and feed industry without substantially improving the safety or health of workers."
In 1987, OSHA issued the rule. In 2003, the agency found that, in the decade after it took effect, deaths in grain dust explosions dropped by 70 percent and injuries by 60 percent.
In 2010, the National Grain and Feed Association—the same group that had sued OSHA to try to block parts of the rule—noted this "unprecedented decline in explosions, injuries and fatalities at grain handling facilities" in comments submitted to OSHA. The association cited the "economic benefit of implementing the grain handling standard" and wrote, "We firmly believe that there is overwhelming evidence supporting the grain handling standard's effectiveness in preventing fires and explosions and resulting injuries."
Some in Congress want OSHA to act on combustible dust now. California Rep. George Miller and two other House Democrats have introduced a bill that would require the agency to issue an interim rule within a year. "The fact that workers are killed and injured in all too frequent, clearly preventable combustible dust explosions shows that Congress must act," Miller said in a statement to the Center for Public Integrity.
In Georgia, the building Jamie Butler and his coworkers knew during their time at Imperial Sugar is long gone, consumed entirely by the inferno of February 2008. In its place is a modern packing facility company officials say stands as evidence of what they learned from the disaster. "If there is ever an explosion again—and that's just not going to happen—it would never spread from building to building ever again," Imperial Sugar health and safety official Kathleen Gonzalez said during a recent tour, pointing to a system designed to blanket the area with water and halt a fire in its tracks.
Sugar no longer enters the packing building on a conveyor belt—the location of the initial explosion in 2008. It is shot through pipes in pellets packed so densely that they shouldn't be able to ignite. Sensors can detect the first signs of sparks in the pipes, then automatically isolate the area and flood it with a neutralizing solution.
Near work areas, vacuums take spilled dust to a vessel outside the building—a contrast from the company's previous practice of using compressed air to clean dust, which blew it onto ledges and rafters where it eventually was shaken loose, fueling explosions. A sign reminds workers, "Your job is not complete until your work area is CLEAN."
The company has told OSHA of its "strong support" for a combustible dust rule. "We believe that there is still a low level of knowledge of the extent of hazards of combustible dust in industry," the company wrote OSHA.
A father's memory
Chris Sherburne hasn't given up on some of the plans she and Wiley made. They dreamed of building a new house on their land to replace their double-wide, and in December 2010—about a month before his death—they'd decided to start the following spring.
Chris stuck to the plan, functioning as her own general contractor. "I decided to just build it and see what happens," she told us. Last December, Chris and her son moved into their new house. No pictures of Wiley adorn the walls or mantelpieces. "It's easier for us not to have stuff in plain view," Chris said. When Wiley's body was cremated, at first the ashes sat on Chris' bedroom dresser. "After a few days," she recalled, "I said, 'Wiley I can't look at you every day; I can't do this.' He's in the closet now."
As their son approached driving age, the plan was for Wiley to help him find a clunker and fix it up. Instead, he now drives his father's souped-up Dodge Ram 2500. "Every now and then, when I see it coming up the driveway," Chris said, "for a split second I still think it's Wiley."