Federal OSHA Issues Third Largest Fine in History Following Sugar Refinery Explosion

Last Friday (7/25/08), the Occupational Safety and Health Administration (OSHA) issued citations proposing penalties totaling $8,777,500 against the Imperial Sugar Co. and its two affiliates alleging violations at their plants in Port Wentworth, GA and Gramercy, LA. OSHA initiated the inspections following an explosion and fire on Feb. 7, 2008, at the Port Wentworth refinery that claimed the lives of 13 employees and hospitalized 40 others. Three employees still remain hospitalized. The proposed penalties against Imperial Sugar represent the third largest fine in the history of OSHA.

OSHA's inspections of both facilities found that there were large accumulations of combustible sugar dust in workrooms, on electrical motors, and on other equipment. The investigation also determined that officials at the company were well aware of these conditions, but they took no action reasonably directed at reducing the obvious hazards.

"I am outraged that this company would show a complete disregard for its employees' safety by knowingly placing them in an extremely dangerous work environment," said Assistant Secretary of Labor for Occupational Safety and Health Edwin G. Foulke Jr. He added, "What is even worse is that a month after the devastating catastrophe in Port Wentworth that claimed the lives of 13 people, this company had done little to ensure abatement of the combustible dust hazards at its other plant. If OSHA investigators had not inspected and posted an imminent danger notice regarding areas at the second plant, the same thing could have happened again."

OSHA proposed $5,062,000 in penalties for safety violations at the Port Wentworth refinery and $3,715,500 for safety violations found at the Gramercy refinery. The citations include 108 instances of willful violations related to the combustible dust hazard, including the failure to clean up dust and not using appropriate equipment or safeguards where combustible dust is present. OSHA also has issued 10 citations for other willful violations, 100 citations for serious violations, and four citations for other than serious safety and health violations.

The company has 15 business days to contest the citations and proposed penalties before the independent Occupational Safety and Health Review Commission. OSHA's Savannah, GA, area office staff inspected the Port Wentworth site, while the agency's Baton Rouge, LA, area office staff inspected the Gramercy, LA, location.

Under the Occupational Safety and Health Act of 1970, employers are responsible for providing a safe and healthy workplace for their employees. OSHA's role is to promote the safety and health of America's working men and women by setting and enforcing standards; providing training, outreach and education; establishing partnerships; and encouraging continual process improvement in workplace safety and health.

ASSE Raises Concerns Over OSHA Proposed Confined Space Rule

In a letter sent to the Assistant Secretary of Labor Edwin G. Foulke, Jr., the American Society of Safety Engineers (ASSE) said the proposed rule on Confined Spaces in Construction recently published by the U.S. Occupational Safety and Health Administration (OSHA) is unduly complicated, introduces unnecessary new terminology and requirements that are burdensome, and fails to recognize current safety practices that have proven successful in practice both in general industry and in construction.

"These comments reflect the front-line experience of our members who strive to help protect workers on job sites across the country in all industries, including construction," ASSE President Michael W. Thompson, CSP, said in the letter. "They also reflect the expertise of the members of the ANSI Z117 Accredited Standards Committee for Confined Space Entry, for which ASSE serves as the Secretariat."

ASSE is responsible for several American National Standards Institute (ANSI) Committees including the Z117 Committee for 'Confined Spaces' as well as the A10 Committee for 'Safety Requirements for Construction and Demolition Operations'.

"This rule, if adopted without significant changes, would provide for a significantly lower level of safety than what is currently required throughout the construction industry by the Z117.1-2003 standard," Thompson wrote. "Rulemaking that provides less worker protections than that provided by a widely adopted voluntary consensus standard like Z117.1 goes against OSHA’s duty established under the 'National Technology Transfer and Advancement Act of 1995'."

This Act states that all federal agencies and departments shall use technical standards that are developed or adopted by voluntary consensus standards bodies, using such technical standards as a means to carry out policy objectives or activities determined by the agencies and departments.

Further, rather than adding clarity or advancing safety consistent with current industry safety practices, Thompson wrote, the changes offered in this proposed rule instead add a new level of complexity to the work of our members and employers while adding little new to the approaches already successfully being used to address confined space risks. It also fails to address important confined space topics including harmonization of confined space classifications, hazard assessment, assignment of responsibilities, and the continued allowance of a chest harness as part of a vertical confined space rescue effort.

According to the National Institute of Occupational Safety and Health (NIOSH) "Confined Space" refers to a space which by design has limited openings for entry and exit, unfavorable natural ventilation which could contain or produce dangerous air contaminants, and which is not intended for continuous employee occupancy. Confined spaces include but are not limited to storage tanks, compartments of ships, process vessels, pits, silos, vats, degreasers, reaction vessels, boilers, ventilation and exhaust ducts, sewers, tunnels, underground utility vaults, and pipelines.

Thompson was also concerned that this rule is not in harmony with the widely accepted Z117.1-2003 consensus standard 'Safety Requirements for Confined Spaces'. A comparison of Z117.1 to the proposed rule demonstrates that the existing General Industry regulations together with Z117.1 does have the necessary scope, breadth and detail to help employers manage successfully confined space safety matters within the construction industry. It is apparent that the standards used in OSHA’s evaluations were outdated 1977 and 1989 standards no longer affirmed by the Z117 Committee. The Committee published 1995 and 2003 editions that have been used by OSHA to support over 50 general duty clause citations issued by compliance officers to employers.

In the letter, Thompson included examples of how Z117.1 has been used by OSHA with regard to the General Duty Clause and provided comments from ASSE members that reflect the variety of misdirected conclusions and statements found in the proposed rule.

"Taken as a whole, they point to rulemaking that is not complete and that has not been undertaken with the purpose of finding a way to work with those who are experts in confined space safety in order to advance properly this nation’s commitment to protecting workers," Thompson said. "ASSE is deeply concerned that OSHA decided against using terminology and definitions in its proposed standard that have existed for decades, are widely used in the safety and health community and in industry when addressing confined space risks to workers. Creating a new lexicon for this very particular safety area can only result in confusion and add to the potential for risk, not limit it.

"Nevertheless, rulemaking that is not consistent with current industry practices, especially when a widely respected voluntary consensus standard reflects those practices, does not advance workplace safety and health in a way we know OSHA wants its standards to do," Thompson concluded. "We look forward to working with you and to the revision of this proposed rule that affects the many workers in this country."

For more information on the Z117 Committee and the Z117.1-2003 standard please go to www.asse.org.

WEB EXCLUSIVE: Learn the Details of NFPA 70E

This WEB EXCLUSIVE comes from Joseph Deane, PE, Principal, KTR Associates, LLC Engineering Solutions of Sinking Spring, PA. Deane is an industry expert on electrical safety; he recently spoke to the Electrical Generating Service Association’s annual meeting in Maui, Hi.

The NFPA 70E standard was created at the request of OSHA in 1979 to recognize the difference between design and workplace safety. The National Electric Code (NEC) reflects the installation (design) standard while the NFPA 70E is the workplace safety standard.

While National Fire Protection Agency’s NFPA 70 represents the National Electric Code (NEC), NFPA 70E represents the standard for electrical safety in the workplace. NFPA 70E describes in detail employer responsibilities and recommendations on topics such as employee training, safety-related work practices, tagout procedures, calculating flash protection boundaries, and personal protective equipment.

Why is NFPA-70E Standard Important?
Because following the NFPA-70E standard may save a life. Hazardous arc flashes can occur in any electrical device in which energy is high enough to sustain an arc. The heat exposure due to an electrical arc can produce first-degree burns, permanent blindness, or even death. NFPA-70E specifies boundaries within which flash protection is required in an effort to reduce the extent of potential injuries.

The National Safety Council estimates that approximately 360 fatalities occur each year, roughly a person a day, due to electrocution More than half occurred while working on energized equipment rated 600 volts or below. Five to 10 electrical “arc flashes” occur in the workplace everyday. Burn center cost for an individually exposed to an electrical arc flash is around $12 to $20 million.

Conscientious employers should include both shock and arc hazard identification in their safety programs. When working on electrical apparatus (switchgear, panelboards, motor control centers, etc.) the incident energy or available fault current to product an arc flash needs to be clearly identified on each respective enclosure or piece of electrical equipment.

It is important to document the incident energy (calories per square cm) for an employee when it has been determined they will be working within the flash protection boundary. Producing a Flash Hazard Analysis can do this.

According to the OSHA 29 CFR 1910.269 (1) (6) (iii) requirement, employers will ensure that each employee who is exposed to the hazards of flames or electric arc flashes will not wear clothing that could increase the extent of injury when exposed to flames or arc flashes.

Does OSHA Recognize the NFPA 70E?
Absolutely. As stated previously, the NFPA 70E standard was created in 1979 at OSHA’s request. OSHA’s 29 CFR electrical sections 1910.302 thru 1910.308 were based on the initial 1979 NFPA 70E standard, which did not address arc flash incidents at that time. The NFPA has now incorporated this hazard into its standard.

OSHA will cite companies for non-compliance with 29 CFR 1910.335(a)(1)(i) which requires the use of protective equipment when working where a potential hazard exists and 29 CFR 1910.132(d)(1) which requires the employer to provide an assessment of the workplace for hazards and the need for personal protective equipment.

OSHA also utilizes the “General Duty Clause” which states, “each employer shall furnish to each of its employees a place of employment that is free from recognized hazards that are likely to cause death or serious physical harm”.

Beginning with the 2002 NEC (NFPA 70) Article 110.16 states “Flash Protection: Switchboards, panelboards, control panels, MCC’s that require examination, adjustments, servicing or maintenance shall be field marked to warn of potential arch flash hazards”.

OSHA 29 CFR 1910 Subpart S Appendix A states, “The NFPA 70 and 70E can be helpful in understanding and comply with the requirements of Subpart S – Electrical.

OSHA Rule Standardizes Distribution of Employer Paid Personal Protective Equipment

The American Society of Safety Engineers (ASSE) has recognized the Occupational Safety and Health Administration’s (OSHA) efforts in publishing a standard for employer-paid personal protective equipment (PPE).

“ASSE is pleased that OSHA issued its long awaited standard addressing employer payment for PPE,” said ASSE President Michael W. Thompson, CSP. “ASSE’s member safety, health, and environmental professionals view the provisions of the standard as a realistic reflection of how they see this issue dealt with on the job each day and as an appropriate balance between the several interests that determine who should pay for PPE.”

Thompson added, “ASSE hopes that the publication of this standard signals a renewed commitment from OSHA to continue to advance appropriate standard setting.”

According to OSHA, under the final rule, all PPE, with a few exceptions, will be provided to employees at no cost. The few exceptions include ordinary safety-toed footwear and ordinary prescription safety eyewear the employer allows to be worn off the job site, logging boots, and ordinary clothing and weather related gear. Employers also must pay for replacement PPE unless the employee loses or intentionally damages the PPE.

OSHA estimates that the final rule, which was published in the Federal Register today, will lead to more than 21,000 fewer occupational injuries per year. The standard is available at this link.