Dust Explosions and Corporate Homicide Prosecutions

A very informative article by Cesar de Castro was recently posted in the New York Law Journal, "Sorting Out the Law on Homicide Prosecutions Against Corporations." which addresses issues concerning corporate homicide prosecution such as workplace fatalities arising from dust explosions. The article mentioned the People v. Warner-Lambertt case where in 1976 a dust explosion at the American Chicle plant in Queens, New York, killed six people and injured 55.

Magnesium stearate (MS) was utilized in the manufacturing process of Freshen-Up chewing gum at the Queen's chewing gum plant. Court documents provided information, "that at the end of one of the work shifts workers were engaged in removing settled MS dust from the bottom of a machine and from overhead pipes by broom sweeping and by the use of air hoses. Suddenly an explosion occurred in the area of the operating machine, followed almost immediately by a second, much larger explosion."

After a lengthy investigation, a grand jury indicted Warner-Lambert and four of its executives on charges of reckless manslaughter and criminally negligent homicide. In 1978 the state court dismissed the charges. The following year, in 1979, the New York State appellate court restored the indictments. A year later, in 1980, the state court again dismissed all charges in connection with the explosion.

Cesar de Castro's excellent article provides helpful insight concerning litigation that ensues following catastrophic incidents such as in the above example. Hopefully manufacturing facilities will adhere to proper preventative and mitigative measures as outlined in the NFPA combustible dust standards in addition to other measures in minimizing the severity and probability of dust explosions from occurring.

Conducting a Google Search on Magnesium Stearate MSDS's produced varying results. Some MSDS's provide information on the dust explosion and fire hazards, yet others don't. The most extensive MSDS was from Mallinckrodt Chemical, which lists the deflagration index (Kst), Minimum Ignition Energy (MIE), Minimum Explosible Concentration (MEC), Minimum Ignition Temperature (MIT)-Dust Cloud, Minimum Ignition Temperature-Dust Layer, and Limiting Oxygen Concentration (LOC).

Reviewing the MSDS provided by Mallinckrodt Chemical is an excellent example of the proactive measures that stakeholders must utilize in providing hazard communication information on the fire and explosion hazards of combustible dust throughout a facility that handle such dusts. With this vital information workers, plant managers, and owners can take the appropiate measures in preventing future fatalities and injuries as what occurred over three decades ago at the American Chicle plant in Queens, New York.

Dust Explosions-Not Cleared For Public Release

Its a bit odd and bewildering how data of combustible dust explosions in the Chemical Safety Board, Combustible Dust Hazard Investigation Report that was submitted to OSHA in November 2006 did not include the fatalities and injuries such as the incident that occurred at a Reconstituted Wood Product Manufacturing plant in Mount Jewett, PA back in February 2001. How can appropiate layers of protection be implemented in the workplace if stakeholders do not know the probability and severity of occurrences if full transparency of the complex combustible dust issue is not adhered to?

Incident # 190, which occurred 2/14/2001, is listed in the CSB Dust Incident Data File. But the description is omitted with the statement, "Information not cleared for public release. " How can that be, with the vital information not cleared, when adjacent to the date of the incident is the OSHA Activity Number which provides a description of the above incident and many others labeled "not cleared for public release."?

OSHA has been citing facilities for combustible dust hazards many years prior to the series of catastrophic dust explosions that occurred in 2003. These citations referenced the NFPA Combustible Dust Standards utilizing the General Duty Clause. OSHA through national consensus continues to cite facilities for combustible dust hazards with the power of the General Duty Clause.

Subsequently, OSHA needs to thoroughly review CSB's helpful recommendations in addition to instituting other layers of protection that will provide sufficient preventative and mitigative measures for the workplace in regards to combustible dust hazards. It shouldn't take an Act of Congress with the reissued combustible dust bill to get the ball rolling. Hopefully with the new administration and appointees within OSHA's leadership structure the entire combustible dust issue will be reevaluated in proper context.

The first step must be revising the Combustible Dust NEP so as to reflect the reality of the majority of incidents (over 60%) occuring in national industries (NAICS) not listed in the NEP. OSHA Region 4 has set an excellent example inspecting facilities for dust hazards that are not listed in the Dust NEP. A good rule of thumb would be if a facility has a dust collector on the premises, then there is a potential for a combustible dust related explosion or fire. Think of a dust collector as a hand grenade with the pin pulled and all that is needed next is an ignition source when the lever is released. That just might get everyone's attention with this sort of proactive attitude.

No matter how stringent OSHA enforcement and inspection activities are pursued, combustible dust explosions and fires will continue to occur. Legislators who drafted the current reissued combustible dust bill have all the great intentions in preventing further fatalities and injuries as occurred at Imperial Sugar Refinery last year. But the reality which they must be educated to understand is that dust explosions and fires cannot be totally prevented. Only the probability and severity can be reduced.

A good example is the ethanol plant explosion earlier this month in Hastings, Nebraska with the grain grinder explosion resulting in two injuries. Ethanol plants have the most stringent governmental regulations protecting the worker, public ,and environment with the EPA Risk Management Program (RMP), OSHA Process Safety Management Standard (PSM), in addition to the OSHA Grain Facility Standard. It doesn't get any more stringent than this. The current combustible dust bill as written won't even come close to providing this much of protection. Ironically, with all the layers of protection in this industry, it has the highest rate of explosions and fires over the past twelve months than any of the other 426 national industries (NAICS) in the manufacturing sector.

The current position that legislators and the CSB of possible protective measures is a great start. But should not be the sole solution, especially when other important aspects of the very complex and dynamic combustible dust hazard issue is not also addressed to the full extent. Hopefully insight from continued in-depth research on combustible dust related fires and explosions that the Combustible Dust Policy Institute is conducting will provide additional helpful information on a broad horizon useful to all stakeholders.

OSHA Region 4 Tough on Combustible Dust

In less than a week several OSHA Regional New Releases issued from the OSHA Region 4 main office in Atlanta, Georgia provided details concerning three establishments, proposing over $400,000 in penalties for safety and health violations, which includes combustible dust hazard violations. Each company has 15 business days from receipt of the citations to comply, request an informal conference with OSHA's area director or contest the citations and proposed penalties before the independent Occupational Safety and Health Review Commission.

OSHA Region 4 includes the states of Alabama , Florida, Georgia, Kentucky, Mississippi, North Carolina, South Carolina, and Tennessee. The numerous citations came from the manufacturing sectors of wood, food, and transportation equipment. Of special interest was the national industry NAICS 336360 Motor Vehicle Seating and Interior Trim Manufacturing, which is not included in the OSHA Combustible Dust NEP as an at risk industry, yet the Georgia facility was cited for using high pressure compressed air to clean equipment resulting in clouds of resin dust, and a second repeat violation for exposing employees to high concentrations of airborne particulates.

Reviewing details of OSHA inspections conducted at manufacturing facilities in Region 4 brings to light that OSHA inspectors are conducting combustible dust inspection and enforcement activities at many other facilities with NAICS not listed in Appendix D-1 and D-2 of the OSHA Combustible Dust NEP. This enhanced enforcement activity concerning combustible dust hazards in the workplace illustrates that all manufacturing and non-manufacturing facilities that handle combustible particulate solids that generate combustible dust must proactively address dust hazards with preventative administrative and engineering control measures.

Resources:
NAICS 321113 D-1 NEP Sawmills
NAICS 311312 D-1 NEP Cane Sugar Refining
NAICS 336360 Non-NEP Motor Vehicle Seating and Interior Trim Mfg.

Ethanol Plant Dust Explosions and Fires

Like a small tremor on the San Andreas fault line of the West Coast as a precursor to the big one, the recent explosion at the ethanol plant in Hastings, Nebraska provides a similar warning. In less than a year over a dozen combustible dust related fires and explosions have occurred at ethanol facilities throughout the Midwest. The importance of donning proper PPE such as flame resistant clothing (FRC) in such a work environment takes on added dimension with now learning the workers T-shirts were set on fire from the blast. A week prior to the Hastings explosion, according to media accounts, an ethanol plant in Casselton, North Dakota experienced a minor fire in the dust collection bin.

Ethanol plants have complex explosion and fire hazards not found in other manufacturing national industries (NAICS) where the attributes of a grain handling facility is combined with a chemical plant in the production of ethyl alcohol. Subsequently, these process facilities must follow stringent regulatory guidelines according to the OSHA Process Safety Management Standard (PSM) and EPA Risk Management Program (RMP). Additionally, combustible dust hazards are addressed in the OSHA Grain Facility Standard.

The confusing aspect of identifying in which area OSHA regulates this national industry besides the OSHA PSM standard is that SIC 2046 for Wet Corn Milling and SIC 2869 for Ethyl Alcohol Manufacturing is not listed as SIC's regulated in the OSHA Grain Facility Standard. In contrast, NAICS 311221 Wet Corn Milling is listed as a D-1 NAICS in the OSHA Dust NEP.

With the multitude of regulatory control measures protecting workers, the environment, and the public; accidents still happen. The question arises can the current high incident rate be minimized? In less than a year six ethanol plant explosions have occurred in Michigan, Arizona Minnesota, Kansas, Wisconsin, and Nebraska with ensuing injuries in 50% of these incidents.

So what is an unacceptable accident and injury rate before stakeholders reassess current administrative and best engineering control measures? All the proper administrative and best engineering control measures seem to be in place in the prevention and mitigation of fires and explosions. Yet the incidents are exponentially higher than any other national industry(NAICS) in the manufacturing sector. Hazard awareness through a multitude of educational programs is an excellent measure in addressing this issue.

For instance, ethanol trade associations such as the Renewable Fuel Association (RFA) has an proactive safety program addressing many of the hazards in ethanol production. Additionally, the RFA works collectively with the University of Illinois Fire Service in providing industry with educational programs that prevent future incidents.

Recently, Kirkwood Community College in Cedar Rapids, Iowa was awarded a $174,978 OSHA Susan Harwood Training Grant in hosting a 2 ½-hour awareness-level combustible dust safety course addressing grain dust and other organic dusts such as sugar, flour and paper. The training will provide 150 courses in 14 Midwestern states for 3,000 employers and employees primarily in the agriculture, food processing and fiber sectors with a focus on grain elevators and ethanol bio-refineries. Training is a great administrative approach in providing hazard awareness. But what about the current best engineering control measures and are they adequate?

With the current progression of incidents, this unique national industry with a primary NAICS 325193 Ethyl Alcohol Manufacturing and secondary NAICS 311211 Wet Corn Milling is quite similiar to tectonic plates shifting, one upon the other, and its only a matter of time before another event occurs in the seismic proportion of the 2007 Steamboat, Iowa explosion, causing millions of dollars in damage in addition to potential fatalities and injuries.

Overall, in the majority of these recent ethanol plant incidents, life safety, structural integrity and mission continuity objectives of the NFPA combustible dust standards have been maintained. This is an excellent example illustrating that combustible dust related explosions cannot be totally prevented only the severity reduced. The task now is to somehow reduce the probability.

This overview is not meant to place blame on the ethanol industry which is actively striving to reduce incident rates. Hopefully the information from tracking and researching these incidents will provide stakeholders an enhanced awareness concerning trends that have been developing. With this information possible preventative and mitigative strategies can be devised in minimizing the occurrence of another tremor.

Resources:
Incident Google Map
RMP Facilities
Dry Mill Ethanol Industry .pdf
ETHANOL DRY MILLING: MODEL DESCRIPTION
Feed and Grain Products .pdf

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2008 Dust Explosions and Fires Overview

The Combustible Dust Policy Institute found through researching media accounts in 2008 that over 150+ combustible dust related fires and explosions occurred in the manufacturing, non-manufacturing and utility sectors in the United States. Over 30% of these incidents are repeats of prior fires and explosions that fire departments are responding to. Subsequently, these reoccurring incidents mostly go unnoticed by OSHA, unless there are at least three injuries or one fatality.

The current OSHA Combustible Dust National Emphasis Program (NEP) directive does not address the majority of national industries (NAICS) where incidents are frequently occurring. For example, over 60% of incidents in 2008 occurred in national industries not listed in Appendix D-1 and D-2 of the NEP. Too much emphasis and resources is being directed toward the OSHA Dust NEP, when the majority of incidents are occurring in national industries not referenced in the NEP.

To further complicate the situation, the Chemical Safety Board Combustible Dust Hazard Study did not include in the profile of affected industries, the Paper, Textile, and Non-Manufacturing subsectors as industries where a combustible dust hazard exists. For example, in 2008, over 22% of incidents occurred in these subsectors. Without this important information, OSHA did not include paper national industries in the NEP. Over 10% of combustible dust related incidents in 2008 occurred in paper national industries.

In contrast, over 7% of incidents in 2008 occurred in the rubber/plastics subsector, where these national industries were referenced 90% of the time in the OSHA Dust NEP. A NAICS listing in the NEP does not guarantee the probability of occurrence will be lessened. For instance, the national industry NAICS: 326150/Urethane and Other Foam Product Manufacturing, the U.S Census Bureau lists over 433 firms in the USA. In 2008, OSHA inspected 9% (37) of these facilities with only three inspected for an emphasis on combustible dust.

For 2008, media accounts of combustible dust related fires and explosions occurred in thirty-six states. The states with 10 more or more incidents included Ohio (12), Illinois (10), Maine (10), Pennsylvania (10), and Iowa (10). Injuries occurred in 12% of the incidents. Of the total incidents reported by the media in 2008, 20% were combustible dust explosions.

Reviewing the the grain sector, through media accounts, over 50 combustible dust related fires and explosions occurred in 2008 with over 30% (15) were dust explosions. The adverse economic impact from dust explosions in this sector was much greater than the economic impact from explosions in the manufacturing sector. A question does arise if it makes good sense to model the current pending combustible dust legislation after the OSHA Grain Facility Standard, when so many injuries and economic damage is occurring from dust explosions similar to what’s happening in the manufacturing sector?

This brief overview of combustible dust related incidents in 2008 will hopefully provide all stakeholders additional insight into the complexity of combustible dust hazards in the workplace. The current occupational health and safety regulatory framework does not currently address the magnitude of the problem that encompasses all the national industries where incidents are repeatedly occurring throughout the manufacturing and non-manufacturing sector.