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# Legislative Bulletin........................................................April 30, 2008

**Contents:**

**H.R. 5522**---Combustible Dust Explosion and Fire Prevention Act

H.R. 5522---Combustible Dust Explosion and Fire Prevention Act

(*Rep. Miller, D-CA*)

**Please note the conservative concerns, Administration position,**

**and outside group positions below.**

**[Order of Business]{.underline}**: The bill is scheduled to be
considered on Wednesday, April 30^th^, likely subject to a structured
rule. The RSC will circulate a subsequent document summarizing the rule
and any amendments made in order therein.

**[Background]{.underline}**: On February 7, 2008, an explosion occurred
at an Imperial Sugar Company refinery in Port Wentworth, Georgia. As a
result of the explosion, thirteen workers died and five-dozen other
workers suffered extensive burns. About a week later, the Occupational
Safety and Health Administration (OSHA), after initial investigations by
the local fire department and the federal Bureau of Alcohol, Tobacco,
Firearms, and Explosives (BATFE) found that the explosion was not the
result of foul play, commenced its investigation into the cause of the
explosion. Though the OSHA investigation is not yet complete, by law
OSHA has **[six months]{.underline}** to investigate the accident and,
if warranted, assess penalties on violators of workplace safety laws.
[NOTE]{.underline}: Six months from the start of the OSHA investigation
would be August 15, 2008.

**[Summary]{.underline}**: H.R. 5522 would require expedited issuance of
Labor Department standards for combustible dust---which is dust that can
explode in the manufacturing process. Specifically, the bill would:

-   Require that OSHA, within 90 days of the enactment of this
    legislation, issue an interim standard that, 30 days after issuance,
    would apply to manufacturing, processing, blending, conveying,
    repackaging, and handling of combustible dust (including
    requirements for hazard assessment, operating controls and
    prevention, removal, employee participation, and worker training);

-   Require that OSHA, within 18 months of the enactment of this
    legislation, issue a final standard regulating combustible dust
    explosions (including such factors as the interim standard plus
    longer-term factors like building design, as well as the existing
    standards of the National Fire Protection Association); and

-   Require OSHA to revise its Hazard Communication Standard, within six
    months of the enactment of this legislation, to include combustible
    dust as an additional example of a "physical hazard" in the
    workplace.

The Hazard Communication Standard is the existing standard under which
OSHA regulates combustibles and other hazards in the workplace (see
"Additional Background" below).

**[Additional Background]{.underline}**: Combustible dust---which is
dust that can ignite or explode---consists of fine particles of either a
primary manufactured product or the leftovers of producing some other
product. Often such explosions happen as a result of ventilation
issues---or sometimes problems with heat sources. For more information
on combustible dust and the resulting explosions, go to this webpage:
<http://www.osha.gov/dts/shib/shib073105.html>.

OSHA's [Hazard Communication
Standard](http://www.osha.gov/SLTC/hazardcommunications/standards.html)
requires that businesses monitor and inform employees of the hazards
associated with certain materials in the workplace. The standard
requires that every affected employer establish a program to inform
employees of these hazards, featuring five main components: 1) written
Hazard Communication Program documentation; 2) identification and
inventory of hazardous chemicals; 3) maintenance of material safety data
sheets on the identified hazards; 4) labeling of hazardous materials
with their name and hazard; and 5) training of employees on the
standard, safety information, labeling, and protective measures.

Under the Hazard Communication Standard, employers are
[currently]{.underline} required to maintain data sheets that list the
hazards, including the combustibility, of materials brought onto a
worksite. OSHA [currently]{.underline} has the authority to cite
employers for failing to comply with these standards---and has done so
after a combustible dust accident investigation concludes that the
Hazard Communication Standard was violated.

The "[General Duty
Clause](http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=OSHACT&p_id=3359/)"
of the Occupational Safety and Health Act requires all employers to
"furnish each of his employees employment and a place of employment
which are free from recognized hazards that are causing or are likely to
cause death or serious physical harm to his employees." Since
combustible dust has caused death and injury in many high-profile
accidents, one could argue that the General Duty Clause already covers
combustible dust.

OSHA, in testifying before Congress on this legislation, noted that,
while the investigation into the Imperial Sugar accident continues, OSHA
has already initiated many new outreach programs to alert employers and
employees about combustible dust. For example, according to the
Education and Labor Committee, in early March 2008, OSHA created a new
webpage and sent letters and fact sheets to 30,000 employers with
combustible dust hazards, warning them to "take necessary steps" to
prevent such explosions.

OSHA noted that it has [not]{.underline} [ruled]{.underline}
[out]{.underline} a formal rulemaking process.

**[RSC Bonus Fact]{.underline}**: Although the impetus for this
legislation is the Imperial Sugar accident, combustible dust is not just
a problem for the sugar industry, or even just the food industry at
large. Combustible dust is a concern in the manufacturing of plastics,
wood, rubber, furniture, textiles, pesticides, pharmaceuticals, dyes,
coal, metals, fossil fuel power generation, and of course food
(particularly candy, starch, flour, and feed).
<http://www.osha.gov/dts/shib/shib073105.html>

**[Committee Action]{.underline}**: On March 4, 2008, the bill was
introduced and referred to the Education and Labor Committee, which, on
April 9^th^, marked up, amended, and ordered the bill reported to the
full House by voice vote.

**[Possible Conservative Concerns]{.underline}**: Some conservatives,
including Education and Labor Committee Ranking Member and RSC Member
Buck McKeon (R-CA), have expressed various concerns about the
legislation, including the following:

[Too Much, Too Soon]{.underline}. Democrats, through this legislation,
are proposing that formal OSHA rulemaking on combustible dust proceed
without having the benefit of lessons learned as a result of the federal
investigation into the Imperial Sugar accident.  Such speed could result
in the creation of an ineffective, un-nuanced, unenforceable safety
standard that could actually harm many of our nation's workplaces.

[Increased Uncertainty for Employers and Employees]{.underline}.
Creating an interim rule on short order with the knowledge that a final
standard will be issued about a year thereafter, creates tremendous
uncertainty for employers and employees, whose new duties may be
unclear.

[Particular Harm on Small Businesses]{.underline}. As with any business
uncertainty resulting from shifting federal mandates, small businesses
would be the least able to absorb them and the associated costs easily.
Any new federal mandates created by the congressional-forced rulemaking
could thus yield higher marginal costs for small businesses, forcing
some of them to lay off workers, reduce compensation, or delay
compensation increases.

[Possible Increase in Food Prices]{.underline}. Since the food
manufacturing industry is affected by combustible dust more than any
other industry, any new and varying federal mandates on dust could yield
higher costs for food production---and thus higher prices at the cash
register for American consumers at a time when food prices are already
soaring.

[Unrealistic and Unsafe]{.underline}. OSHA noted that it is unrealistic
for it to promulgate an interim standard within just 90 days, given the
number of stakeholders (i.e. the number of industries) affected by
combustible dust, the varying types of dust, the different causes of
dust ignitions and explosions, and the different types of ignitions and
explosions that take place. The result of an expedited interim standard
could therefore be a one-size-fits-all standard, which ultimately fits
no one, making workplaces no safer---and in some case perhaps less
safe---than they are now.

**[Administration Position]{.underline}**: Although a Statement of
Administration Policy (SAP) was not available at pres time, reports
indicate that the forthcoming SAP for H.R. 5522 will contain a veto
threat.

**[Cost to Taxpayers]{.underline}**: CBO estimates that H.R. 5522 would
authorize \$1 million in fiscal year 2009 and \$41 million over the
FY2009-FY2013 period. CBO notes, "These costs consist of \$1 million in
2009 for economic and feasibility studies to support the development of
the final standard, and \$10 million a year---about a five percent
increase in OSHA's enforcement workload---beginning in 2010 for
enforcement of the final standard."

**[Does the Bill Expand the Size and Scope of the Federal
Government?]{.underline}**: Yes, the bill would impose increased federal
regulations on industrial establishments that manufacture, process,

or otherwise handle materials that produce combustible dusts.

**[Does the Bill Contain Any New State-Government, Local-Government, or
Private-Sector Mandates?]{.underline}**: Yes, CBO confirms that the
rule-making on combustible dust would impose private-sector mandates
(the exact nature of which would depend on the interim and final
standards) and intergovernmental mandates (to the extent that they would
preempt state laws on combustible dust). CBO reports that at least two
states have implemented or are in the process of implementing standards
to prevent combustible dust explosions. The standards in such states
would be preempted by regulations promulgated under H.R. 5522, unless
such state standards are more robust than the federal standards.

**[Does the Bill Comply with House Rules Regarding Earmarks/Limited Tax
Benefits/Limited Tariff Benefits?]{.underline}**: The Education and
Labor Committee, in [House Report
110-601](http://www.congress.gov/cgi-lis/cpquery/R?cp110:FLD010:@1(hr601):),
asserts that, "H.R. 5522 does not contain any congressional earmarks,
limited tax benefits, or limited tariff benefits as defined in clause
9(d), 9(e) or 9(f) of rule XXI."

**[Constitutional Authority]{.underline}**: The Education and Labor
Committee, in [House Report
110-601](http://www.congress.gov/cgi-lis/cpquery/R?cp110:FLD010:@1(hr601):),
cites constitutional authority in Article I, Section 8, Clause 3
(Congress' power to regulate commerce among the several states).

**[Outside Organizations]{.underline}**: The following organizations
have expressed public **[opposition]{.underline}** to H.R. 5522:

-   Alliance for Worker Freedom

-   American Bakers Association

-   American Composites Manufacturers Association

-   Americans for Tax Reform

-   Associated Builders and Contractors

-   Associated General Contractors

-   Corn Refiners Association

-   Industrial Minerals Association - North America

-   Institute for Liberty

-   Mason Contractors Association

-   National Association of Home Builders

-   National Association of Manufacturers

-   National Automobile Dealers Association

-   National Federation of Independent Business

-   National Industrial Sand Association

-   National Mining Association

-   National Roofing Contractors Association

-   Plumbing Heating Cooling Contractors - National Association

-   Printing Industries of America

-   Retail Industry Leaders Association

-   U.S. Chamber of Commerce

The following organizations have expressed public
**[support]{.underline}** for H.R. 5522:

-   United Auto Workers

-   United Food and Commercial Workers Union

-   International Brotherhood of Teamsters

*USA Today* issued an editorial in March in favor of formal OSHA
rulemaking on combustible dust.

**[RSC Staff Contact]{.underline}**: Paul S. Teller,
<paul.teller@mail.house.gov>, (202) 226-9718.

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