OSHA’s Assistant Secretary Edwin Foulke is expected to travel to Port Wentworth, Georgia today, more than 3 weeks after a horrific combustible dust explosion at Imperial Sugar took 12 workers’ lives.  Another 11 workers remain in critical condition at a burn treatment center in Augusta.  Apparently, pressure from Congressman Jack Kingston (R-GA) and Senator Johnny Isakson (R-GA) convinced Mr. Foulke that a trip to the Dixie Crystals’ community is appropriate.  It is, afterall, a workplace disaster on par with the January 2006 Sago disaster which also claimed the lives of 12 men, and arguably more devastating because scores of other workers remain critically injured.  I wonder why we expect to see MSHA’s top officials at the scene of mine disasters (e.g., Crandall Canyon, Sago, Quecreek) but we don’t wonder where is OSHA’s Foulke? 

Is it the difference between rescue efforts versus recovery operations?  In the mine disasater examples mentioned above, MSHA was intimately involved in the efforts to locate and save the trapped underground miners.  While at the Imperial Sugar explosion or the Xcel Energy disaster, I suppose there was no hope that the workers would be found alive.

Is the difference related to MSHA’s familiarity with each and every underground mining workplace in the country (because of its statutory mandate to conduct four inspections per year) compared to OSHA’s alien relationship with most workplaces because inspections only occur on rare occasions? 

Is the difference related to the skill set differences between Mr. Foulke (an attorney) and MSHA’s Mr. Stickler (who was an underground miner, a member of a mine-rescue team, a shift foreman and mine manager)?  During a disaster, the individual with hands-on emergency response experience might be able to assist in the rescue or recovery efforts, while the other might just be in the way. 

Moreover, if an Assistant Secretary doesn’t have any particular technical skills to assist in the emergency response, might one argue that his presence on the scene would simply be a distraction?  He’s better off staying away and letting the experts do their work.  Of course, that doesn’t explain why Mr. Foulke never went to the community; the fire at the plant was finally extinguished on Feburary 15.   Some of the workers’ families and people in the community might have liked to know that the top federal worker S&H official in the country was personally engaged in the matter and committed to making sure that OSHA’s accident investigation is a top-notch operation. 

That kind of message, however, would be an acknowledgement that OSHA is an enforcement agency, and Mr. Foulke and Secretary of Labor Elaine Chao prefer the compliance assistance model.  In the weeks following the Imperial Sugar disaster, Mr. Foulke was involved in signing alliance agreements with the Scaffold Industry Association (Feb. 25, 2008), the Board of Certified Safety Professionals (Feb. 22, 2008), and with NIOSH and the National Hearing Conservation Association (Feb 21, 2008).  I guess he was a little busy negotiating these agreements to speak at each others’ events, to participate in round table discussions or stakeholder meetings, and to develop ways of communicating H&S information.  …Fluff…..Whatever.

But now, at the request of Cong. Kingston and Senator Isakson, Asst. Secretary Foulke will be in Port Wentworth.  Cong. Kingston said:

“With (Foulke) coming down, I think that puts this as a big priority, so that the Department of Labor can help move in the direction we need to move in.”

I’m not sure what that quote means, but Kingston went on:

“When you have a disaster, you put a bunch of regulations in place, and a company like this can say ‘We understand, and we can locate elsewhere.'”

The Congressman is suggesting that more protective workplace safety and health regulations drive companies out of business or oversees.  I’d like to see his data to support that claim.  We’ve often heard trade associations assert such during times when OSHA has proposed new regulations, but the data actually suggests that the rules are not as costly as the pre-implementation estimates and generally result in more efficient production.

Some on Capitol Hill recognize OSHA’s pathetic track record over the last 15 years in issuing new workplace standards, and the economic and political forces which have driven to a halt the rulemaking process.  Cong. George Miller (D-CA) and John Barrow (D-GA) announced that they would be introducing legislation tomorrow to force OSHA to issue an emergency temporary standard within 90 days based on the National Fire Protection Association’s (NFPA) voluntary guidelines for controlling combustible industrial dusts, and to issue a final rule within 18 months. 

These current industry-accepted standards are: NFPA 654 “Standard for the Prevention of Fire and Dust Explosions from the Manufacturing, Processing, and Handling of Combustible Particulate Solids” and NFPA 484: “Standard for Combustible Metals”  We will have to see tomorrow whether Congressman Kingston (R-GA) will co-sponsor this bill.

As OSHA’s and the Chemical Safety Board’s investigations continue, it will be interesting to see whether management at Imperial Sugar were complying with NFPA’s 654 standard.  If not, will OSHA issue a violation of the general duty clause?  Stay tuned.  Also stay tuned for a hearing in the House Education and Labor Committee on March 12 about the Imperial Sugar explosion and other issues related to worksite risks of dust explosions.

Finally, SavannahNow.com reports that a number of contract-employees who were working at Dixie Crystals on Feb 7 and were injured in the blast, are struggling to get assistance from their employer.  In “Aid Eludes Some Refinery Contract Workers,” reporter Aldo Nahed writes:

“They suffered muscle ruptures, head and neck injuries – and they can’t sleep at night. But they have yet to receive any assistance from their employers.  …During a noon service at Connor’s Temple Baptist Church, …the Reverend Bennie R. Mitchell Jr. introduced the two men and other contract workers who said they have not been acknowledged by their employers. 

“Mitchell vowed to continue to assist them.  ‘Some of them are hurting.  They’ve been invisible. They’ve been forgotten. I just think we ought to do righteous. Let’s treat human beings like human beings.’  Mitchell said a fellow pastor called him about the injured workers who were hungry and in pain. Mitchell said his congregation stepped up and gave the workers groceries. Mitchell estimates that 10 to 15 contract workers fear asking for help because they are undocumented.”

The contractors were employees of Kerby Enterprises; 50 Kerby employees worked at the Dixie Crystals refinery, some loading pallets of sugar.  Eighteen were at the plant on the day of the explosion.

The SavannahNow.com story reports a Kerby Enterprise spokesman saying:

“We stand by and continue to stand by our employees in this unfortunate situation.”

The injured contract workers say that their employer has not been helpful.

“John Sheptor, Imperial Sugar chief executive officer said Wednesday night that he personally would make sure that all contract workers are being treated for their injuries. ‘I’ll see that the outreach occurs to these people.  I’m concerned that they said they have injuries that weren’t addressed.  We have not tried to discriminate from the employees and the contractors, and we will reach out to these people.'”

One Kerby Enterprise employee, Michael Kelly Fields, 40, died from injuries sustained in the February 7 disaster.

I wonder if Congressman Miller’s hearing on March 12 will get into the uncomfortable topics of contractor employees, and why a firm like Imperial Sugar uses them. 

• Is it because the company needed extra help during a temporary production push?  
• What kind of wages and benefits did these contract employees receive compared to Imperial Sugar’s own employees?
• How often in these dust-explosion cases were contract-employees involved, and what is their current health and employment status compared to workers employed by the company itself?
• Do the procedures for fatality investigations and outreach to injured workers and their families differ at multi-employer worksites? 

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Note: Here’s the link to OSHA’s instruction in October 2007 to inspectors for examining hazards related to combustible dust.