69–006 

110TH CONGRESS REPORT " ! HOUSE OF REPRESENTATIVES 2d Session 110–601 

COMBUSTIBLE DUST EXPLOSION AND FIRE PREVENTION 

ACT OF 2008 

APRIL 22, 2008.—Committed to the Committee of the Whole House on the State of 

the Union and ordered to be printed 

Mr. GEORGE MILLER of California, from the Committee on 

Education and Labor, submitted the following 

R E P O R T 

together with 

MINORITY VIEWS 

[To accompany H.R. 5522] 

[Including cost estimate of the Congressional Budget Office] 

The Committee on Education and Labor, to whom was referred 

the bill (H.R. 5522) to require the Secretary of Labor to issue interim and final occupational safety and health standards regarding 

worker exposure to combustible dust, and for other purposes, having considered the same, report favorably thereon with an amendment and recommend that the bill as amended do pass. 

The amendment is as follows: 

Strike all after the enacting clause and insert the following: 

SECTION 1. SHORT TITLE. 

This Act may be cited as the ‘‘Combustible Dust Explosion and Fire Prevention 

Act of 2008’’. 

SEC. 2. FINDINGS. 

Congress finds the following: 

(1) An emergency exists concerning worker exposure to combustible dust explosions and fires. 

(2) 13 workers were killed and more than 60 seriously injured in a catastrophic combustible dust explosion at Imperial Sugar in Port Wentworth, Georgia on February 7, 2008. 

(3) Following 3 catastrophic dust explosions that killed 14 workers in 2003, 

the Chemical Safety and Hazard Investigation Board (CSB) issued a report in 

November 2006, which identified 281 combustible dust incidents between 1980 

and 2005 that killed 119 workers and injured 718. The CSB concluded that 

‘‘combustible dust explosions are a serious hazard in American industry’’. 


bajohnson on PROD1PC77 with REPORTS
2 

(4) A quarter of the explosions occurred at food industry facilities, including 

sugar plants. Seventy additional combustible dust explosions have occurred 

since 2005. 

(5) Material Safety Data Sheets (MSDSs) often do not adequately address the 

hazards of combustible dusts, and the OSHA Hazard Communication Standard 

(HCS) inadequately addresses dust explosion hazards and fails to ensure that 

safe work practices and guidance documents are included in MSDSs. 

(6) The CSB recommended that OSHA issue a standard designed to prevent 

combustible dust fires and explosions in general industry, based on current National Fire Protection Association (NFPA) dust explosion standards. 

(7) The CSB also recommended that OSHA revise the Hazard Communication 

Standard (HCS) (1910.1200) to clarify that combustible dusts are covered and 

that Material Safety Data Sheets contain information about the hazards and 

physical properties of combustible dusts. 

(8) OSHA has not initiated rulemaking in response to the CSB’s recommendation. 

(9) OSHA issued a grain handling facilities standard (29 C.F.R. 1910.272), in 

1987 that has proven highly effective in reducing the risk of combustible grain 

dust explosions, according to an OSHA evaluation. 

(10) No Occupational Safety and Health Administration standard comprehensively addresses combustible dust explosion hazards in general industry. 

(11) Voluntary National Fire Protection Association standards exist which, 

when implemented, effectively reduce the likelihood and impact of combustible 

dust explosions. 

SEC. 3. ISSUANCE OF STANDARD ON COMBUSTIBLE DUST. 

(a) INTERIM STANDARD.—

(1) APPLICATION AND RULEMAKING.—Notwithstanding any other provision of 

law, not later than 90 days after the date of enactment of this Act, the Secretary of Labor shall promulgate an interim final standard regulating combustible dusts. The interim final standard shall, at a minimum, apply to manufacturing, processing, blending, conveying, repackaging, and handling of combustible particulate solids and their dusts, including organic dusts (such as sugar, 

candy, paper, soap, and dried blood), plastics, sulfur, wood, rubber, furniture, 

textiles, pesticides, pharmaceuticals, fibers, dyes, coal, metals (such as aluminum, chromium, iron, magnesium, and zinc), fossil fuels, and others determined by the Secretary, but shall not apply to processes already covered by 

OSHA’s standard on grain facilities (29 C.F.R. 1910.272). 

(2) REQUIREMENTS.—The interim final standard required under this subsection shall include the following: 

(A) Requirements for hazard assessment to identify, evaluate, and control 

combustible dust hazards. 

(B) Requirements for a written program that includes provisions for hazardous dust inspection, testing, hot work, ignition control, and housekeeping, including the frequency and method or methods used to minimize 

accumulations of combustible dust on ledges, floors, equipment, and other 

exposed surfaces. 

(C) Requirements for engineering, administrative controls, and operating 

procedures, such as means to control fugitive dust emissions and ignition 

sources, the safe use and maintenance of dust producing and dust collection 

systems and filters, minimizing horizontal surfaces where dust can accumulate, and sealing of areas inaccessible to housekeeping. 

(D) Requirements for housekeeping to prevent accumulation of combustible dust in places of employment in such depths that it can present explosion, deflagration, or other fire hazards, including safe methods of dust removal. 

(E) Requirements for employee participation in hazard assessment, development of and compliance with the written program, and other elements of 

hazard management. 

(F) Requirements to provide written safety and health information and 

annual training to employees, including housekeeping procedures, hot work 

procedures, preventive maintenance procedures, common ignition sources, 

and lock-out, tag-out procedures. 

(3) PROCEDURE.—The requirements in this subsection shall take effect without regard to the procedural requirements applicable to regulations promulgated under section 6(b) of the Occupational Safety and Health Act of 1970 (29 

U.S.C. 655(b)) or the procedural requirements of chapter 5 of title 5, United 

States Code. 


bajohnson on PROD1PC77 with REPORTS
3 

(4) EFFECTIVE DATE OF INTERIM STANDARD.—The interim final standard shall 

take effect 30 days after issuance. The interim final standard shall have the 

legal effect of an occupational safety and health standard, and shall apply until 

a final standard becomes effective under section 6 of the Occupational Safety 

and Health Act (29 U.S.C. 655). 

(b) FINAL STANDARD.—

(1) RULEMAKING.—Not later than 18 months after the date of enactment of 

this Act, the Secretary of Labor shall, pursuant to section 6 of the Occupational 

Safety and Health Act (29 U.S.C. 655), promulgate a final standard regulating 

combustible dust explosions. 

(2) REQUIREMENTS.—The final standard required under this subsection shall 

include the following: 

(A) The scope described in subsection (a)(1). 

(B) The worker protection provisions in subsection (a)(2). 

(C) Requirements for managing change of dust producing materials, technology, equipment, staffing, and procedures. 

(D) Requirements for building design such as explosion venting, ducting, 

and sprinklers. 

(E) Requirements for explosion protection, including separation and segregation of the hazard. 

(F) Relevant and appropriate provisions of National Fire Protection Association combustible dust standards, including the ‘‘Standard for the Prevention of Fire and Dust Explosions from the Manufacturing, Processing, and 

Handling of Combustible Particulate Solids’’ (NFPA 654), ‘‘Standard for 

Combustible Metals’’ (NFPA 484), and ‘‘Standard for the Prevention of Fires 

and Dust Explosions in Agricultural and Food Processing Facilities’’ (NFPA 

61). 

SEC. 4. REVISION OF THE HAZARD COMMUNICATION STANDARD. 

(a) REVISION REQUIRED.—Notwithstanding any other provision of law, not later 

than 6 months after the date of enactment of this Act, the Secretary of Labor shall 

revise the hazard communication standard in section 1910.1200 of title 29, Code of 

Federal Regulations, by amending the definition of ‘‘physical hazard’’ in subsection 

(c) of such section to include ‘‘a combustible dust’’ as an additional example of such 

a hazard. 

(b) EFFECT OF MODIFICATIONS.—The modification under this section shall be in 

force until superseded in whole or in part by regulations promulgated by the Secretary of Labor under section 6(b) of the Occupational Safety and Health Act of 1970 

(29 U.S.C. 655(b)) and shall be enforced in the same manner and to the same extent 

as any rule or regulation promulgated under section 6(b). 

(c) EFFECTIVE DATE.—The modification to the hazard communication standard required shall take effect within 30 days after the publication of the revised rule. 

I. PURPOSE

The purpose of this legislation is to direct the Occupational Safety and Health Administration to issue a standard regulating worker exposure to combustible dust explosion and fire hazards. Although the hazards of combustible dust explosions and fires and 

how to prevent them have been well recognized for many decades, 

and despite the recent sugar dust explosion and fire at Imperial 

Sugar in Port Wentworth, Georgia, the Occupational Safety and 

Health Administration has not taken any significant regulatory action to prevent worker exposure to combustible dust explosions and 

fires. 

II. COMMITTEE ACTION INCLUDING LEGISLATIVE HISTORY AND VOTES

IN COMMITTEE

Action in previous Congresses 

There was no action on combustible dust in previous Congresses. 


bajohnson on PROD1PC77 with REPORTS
4 

110th Congress 

Hearing on ‘‘Have OSHA standards kept up with workplace hazards?’’ 

On April 24, 2007, the Workforce Protections Subcommittee, led 

by chairwoman Lynn Woolsey (D–CA), conducted an oversight 

hearing titled ‘‘Have OSHA Standards Kept up With Workplace 

Hazards?’’ in order to address the lack of OSHA standards issued 

over the past six years. The witnesses discussed the obstacles to 

issuing OSHA standards, opportunities to speed up the process and 

the human cost of failing to issue needed protective standards. Witnesses included Assistant Secretary of Labor Edwin Foulke, Scott 

Schneider, Director of Occupational Safety and Health for the Laborers’ Health and Safety Fund of North America, Frank Mirer, 

PhD, Professor of Environmental and Occupational Health 

Sciences, Hunter School of Urban Public Health, New York, Baruch 

Fellner an attorney at Gibson, Dunn and Crutcher, and Eric Peoples, a former employee of Glister-Mary Lee popcorn factory, victim 

of bronchiolitis obliterans (popcorn lung). 

Introduction of H.R. 5522, the ‘‘Combustible Dust Fire and Explosion Prevention Act of 2008’’ 

On March 4, 2008, the ‘‘Combustible Dust Fire and Explosion 

Prevention Act of 2008,’’ as H.R. 5522, was introduced in the 110th 

Congress by Chairman George Miller, joined by Representative 

John Barrow (D–GA) as a lead co-sponsor. 

Full Committee hearing on H.R. 5522 

On March 12, 2008, the full Education and Labor Committee, led 

by Chairman George Miller, held a hearing on H.R. 5522, the 

‘‘Combustible Dust Fire and Explosion Prevention Act of 2008’’. The 

witnesses discussed the need for an enforceable standard that prevents combustible dust explosions and the existence of effective, 

well-recognized voluntary standards that could form the basis of an 

OSHA standard. The witnesses included Acting Chair of the Chemical Safety Board, William Wright, Assistant Secretary of Labor 

Edwin Foulke, Tammy Miser whose brother was killed in a combustible dust explosion, David Sarvadi, representing the U.S. 

Chamber of Commerce, and Amy Spencer, representing the National Fire Protection Association. 

Full Committee markup of H.R. 5522 

On April 9, 2009 the Committee on Education and Labor met to 

markup H.R. 5522, Combustible Dust Fire and Explosion Prevention Act of 2008. The Committee adopted by voice vote an amendment in the nature of a substitute offered by Mrs. Woolsey which 

moved some requirements originally in the Interim Standard to the 

Full Standard. The substitute also removed the requirement to add 

a specific definition of ‘‘combustible dust’’ to the Hazard Communication Standard, but left the requirement that combustible dust 

be included as a ‘‘physical hazard.’’

Mr. Wilson offered an amendment in the nature of a substitute 

that would have delayed a decision about the necessity of a combustible dust standard until completion of the Department of Labor’s investigation of the February 7, 2008 explosion that occurred 


bajohnson on PROD1PC77 with REPORTS
5 

at Imperial Sugar, and based on data gathered from the Combustible Dust National Emphasis program. The amendment was defeated by a voice vote. 

The Committee voted to favorably report H.R. 5522 by a voice 

vote. 

III. SUMMARY OF THE BILL

H.R. 5522 requires OSHA to issue an Interim Final combustible 

dust standard within 90 days and a permanent standard within 18 

months. 

The bill lays out a number of specific items that would be required under the Interim Final Standard. While many of these 

items are currently being enforced by OSHA as part of its National 

Emphasis Program, the Interim Standard would spell out detailed 

requirements for preventing combustible dust explosions and fires 

instead of forcing businesses to ‘‘interpret’’ safe practices from current OSHA standards that are not directly related to this hazard. 

OSHA would be relieved of normal procedural requirements for the 

Interim Standard. 

The Interim Standard would also require additional items not 

now required by OSHA, such as a written dust control program, 

hazard assessment, worker training and employee participation in 

the development and conduct of the dust control program. 

In the Final Standard, OSHA would be required to ‘‘review and 

adopt appropriate and relevant provisions of National Fire Protection Association combustible dust standards’’ and add several specific items not included in the Interim Standard such as ‘‘building 

design,’’ and ‘‘management of change requirements.’’ OSHA would 

go through the normal rulemaking procedures for the final standard, including feasibility analyses, public comment and public hearings. 

The bill would also require OSHA to include ‘‘combustible dust’’

in the definition of physical hazards in OSHA’s Hazard Communication Standard, (CFR 1910.1200). 

IV. STATEMENT AND COMMITTEE VIEWS

The Committee on Education and Labor of the 110th Congress 

is committed to ensuring that the federal government does everything within its power to ensure that workplaces are safe and that 

the health and safety of American workers is protected, consistent 

with the goals of the Occupational Safety and Health Act of 1970. 

H.R. 5522 addresses the protection of workers from combustible 

dust explosions and fires. The committee considers combustible 

dust hazards to be an emergency. On February 7, 2008, a massive 

explosion ripped through the Imperial Sugar Refinery in Port 

Wentworth, Georgia. Thirteen workers have died. More than 60 

others were injured, many critically. Many of those who survive 

face life-long disability and disfigurement from severe burns resulting for the explosion and fire. The U.S. Chemical Safety and Hazard Investigation Board (CSB) and the Occupational Safety and 

Health Administration have launched major investigations into the 


bajohnson on PROD1PC77 with REPORTS
6 

1Statement of CSB Investigations Manager Stephen Selk, P.E., Updating the Public on the 

Investigation of the Imperial Sugar Company Explosion and Fire, Savannah, Georgia, February 

18, 2008. 2 US Chemical Safety and Hazard Investigation Report, Combustible Dust Hazard Study, Report No. 2006–H–1, November 2006. 3 NFPA 654, Standard for the Prevention of Fire and Dust Explosions from the Manufacturing, Processing, and Handling of Combustible Particulate Solids. 

causes of the explosion and have preliminarily concluded that the 

explosion was caused by combustible sugar dust.1

The hazards of combustible dusts are nothing new. In 2006, following a series of fatal combustible dust explosions in 2003, the 

CSB conducted a major study of combustible dust hazards.2 The 

CSB identified 281 combustible dust incidents between 1980 and 

2005 that killed 119 workers and injured 718, and extensively 

damaged industrial facilities. A total of 24% of the explosions occurred in the food industry, including several at sugar plants. The 

CSB report concluded that ‘‘combustible dust explosions are a serious hazard in American industry, and that existing efforts inadequately address this hazard.’’ The CSB found that there is no comprehensive federal Occupational Safety and Health Administration standard that effectively 

controls the risk of dust explosions in general industry. The Board 

therefore recommended that OSHA issue a mandatory standard. 

Yet, to this date, more than a year after the CSB report was 

issued, OSHA has no plans to develop a mandatory combustible 

dust standard. 

OSHA has failed to act to protect workers even though effective 

measures to protect workers from combustible dust explosions are 

well recognized. Voluntary standards issued by the National Fire 

Protection Association (NFPA) provide effective and detailed measures that can be taken to prevent these tragic explosions. And 

OSHA’s Grain Facilities Handling Standard, issued in 1987, partially in response to a number of catastrophic grain dust explosions, has effectively reduced the number of fatalities in this industry. 

As the Imperial Sugar explosion tragically made clear, however, 

voluntary standards are not enough. Without an OSHA standard, 

many employers are unaware of the hazards of combustible dusts 

and control methods, and others have failed to comply with voluntary standards. 

Combustible dust hazards 

Dust from any organic material or metal that can burn, can also 

explode if the particles are fine enough, and if they are mixed with 

air in a confined area. As little as 1⁄32nd of an inch of dust (the 

width of a paperclip), spread over just 5% of a room surface presents a significant explosion hazard, according to the National Fire 

Protection Association.3

Typically, a small event or ‘‘primary’’ explosion occurs which then 

suspends significant amounts of nearby dust from floor or rafters 

in the air, causing a much larger ‘‘secondary’’ explosion, which may 

then cause even larger cascading secondary explosions. Because of 

the scale of destruction, the initiating event is often never identified. 

Preliminary findings of the CSB indicate that the Imperial explosion falls into this pattern: 


bajohnson on PROD1PC77 with REPORTS
7 

4 H.R. 5522, The Combustible Dust Explosion and Fire Prevention Act of 2008, Hearing before 

the Committee on Education and Labor, 110th Congress, 2nd Session (2008) (Written testimony 

of William Wright) [Hereinafter Wright Testimony]. 5 U.S. Chemical Safety and Hazard Investigation Report, Combustible Dust Hazard Study, Report No. 2006–H–1, November 2006. 

Like many catastrophic dust explosions, this was a multi-stage 

event. There was a primary event, the nature of which remains unknown. The primary event most likely dislodged sugar dust that 

had accumulated over a long period on surfaces around the facility. 

This dislodged dust was the fuel for additional explosions. Devastating explosions propagated through a large section of the refinery, destroying the sugar packaging plant and causing catastrophic 

injuries to multiple employees and contractors. 

This facility was decades old and had many horizontal surfaces 

where dust could collect. These included overhead floor joists, 

rafters, ductwork, piping, and equipment. Witnesses have described 

substantial, snow-like accumulations of sugar dust on these surfaces. 

Most employees and contractors had received little training on 

the explosion hazard from the accumulated dust. 

No witnesses have indicated that the facility had a program to 

fully implement NFPA standards for combustible dust.4

The hazards of combustible dusts have been known for centuries. 

In 1923, the National Fire Protection Association issued its first 

combustible dust standard. Today, NFPA has seven separate combustible dust standards which are generally updated every five 

years. 

When the Occupational Safety and Health Act was passed in 

1970, Congress authorized the newly formed Occupational Safety 

and Health Administration to adopt any national consensus standards ‘‘unless [the Secretary of Labor] determines that the promulgation of such a standard would not result in improved safety or 

health for specifically designated employees.’’ Although OSHA 

adopted a number of consensus standards, including NFPA standards, the agency chose not to adopt any NFPA combustible dust 

standards. 

Combustible dust hazards were the subject of a major Chemical 

Safety Board (CSB) study issued in 2006. The study concluded that 

combustible dust explosions were a major problem in American industry and that there was no mandatory OSHA standard to prevent them in General Industry. (There is a grain handling standard which addresses grain dust in grain silos, issued in 1987, that 

has been highly effective in preventing explosions and saving lives, 

according to an OSHA evaluation.) 

In its 2006 study, the CSB found that the voluntary standard 

issued by the National Fire Protection Association was effective if 

employers complied, but that there was no government entity except for OSHA that could require facilities to comply with the safe 

work practices detailed in the NFPA standard. 

Based on the results of its investigation, the CSB made five recommendations to OSHA: 5

1. Issue a standard designed to prevent combustible dust fires 

and explosions in general industry. Base the standard on current 

National Fire Protection Association (NFPA) dust explosion standards. 


bajohnson on PROD1PC77 with REPORTS
8 

6Occupational Safety and Health Administration, CPL 03–00–006—Combustible Dust National Emphasis Program, October 18, 2007. 7Occupational Safety and Health Administration, CPL 03–00–008—Combustible Dust National Emphasis Program (Reissued), March 11, 2008. 8Letter from Reps. George Miller and Lynn Woolsey to Secretary of Labor Elaine Chao, February 8, 2008. 9Letter from Assistant Secretary Edwin Foulke to Rep. George Miller, March 27, 2008. 

2. Revise the Hazard Communication Standard (HCS) 

(1910.1200) to clarify that the HCS covers combustible dusts, and 

that Material Safety Data Sheets (MSDSs) must include important 

information about combustible dusts. 

3. Communicate to the United Nations Economic Commission for 

Europe (UNECE) the need to amend the Globally Harmonized System (GHS) to address combustible dust hazards. 

4. Provide training through the OSHA Training Institute (OTI) 

on recognizing and preventing combustible dust explosions. 

5. While a standard is being developed, identify manufacturing 

industries at risk and develop and implement a national Special 

Emphasis Program (SEP) on combustible dust hazards in general 

industry. 

OSHA has not proceeded aggressively to prevent worker exposure to 

combustible dust fires and explosions 

In 2005, in response to three fatal dust explosions in 2003, 

OSHA issued a Safety and Health Information Bulletin, Combustible Dust in Industry: Preventing and Mitigating the Effects of 

Fire and Explosions. No public announcement was made at the 

time the SHIB was issue and the SHIB was not distributed to companies at risk. 

In October 2007, almost a year after the release of the CSB report, OSHA launched a combustible dust National Emphasis Program (NEP).6 Under the NEP, each of OSHA’s 90 Area Offices received a list of locations that may have dust hazards and were required to randomly choose one to inspect in the coming year. The 

21 states that run their own OSHA programs are not required to 

participate in the NEP. On March 11, 2008, OSHA reissued the 

NEP, raising the total number of annual inspections to around 

300.7

On February 8, 2008, immediately following the Imperial Sugar 

explosion, Representatives George Miller and Lynn Woolsey sent a 

letter to OSHA asking that the agency ‘‘take immediate steps to 

issue a standard to prevent combustible dust explosions as recommended to your agency by the Chemical Safety Board (CSB) in 

November 2006.’’ 8

And on February 19, 2008, the United Food and Commercial 

Workers union and the International Brotherhood of Teamsters petitioned OSHA for a combustible dust standard. 

In early March 2008, OSHA created a new Web page 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 also offers free training from state consultation 

programs although there is little evidence that sufficient numbers 

of consultants have been trained in the causes and prevention of 

combustible dust hazards.9

It was not until March 27, 2008—almost a year and a half after 

the CSB recommendations were released, almost two months after 


bajohnson on PROD1PC77 with REPORTS
9 

10Letter from Assistant Secretary Edwin Foulke to Chairman John Bresland, March 27, 2008. 11 H.R. 5522, The Combustible Dust Explosion and Fire Prevention Act of 2008, Hearing before the Committee on Education and Labor, 110th Congress, 2nd Session (2008) (Written testimony of Tammy Miser) [Hereinafter Miser Testimony]. 12 H.R. 5522, The Combustible Dust Explosion and Fire Prevention Act of 2008, Hearing before the Committee on Education and Labor, 110th Congress, 2nd Session (2008) (Written testimony of William Wright) [Hereinafter Wright Testimony]. 

the Imperial explosion and three weeks after the introduction of 

H.R. 5522—that the CSB received its first substantive response 

from OSHA regarding its 2006 combustible dust recommendations. 

OSHA informed the CSB that the agency had not yet decided on 

whether to issue a standard: 

OSHA continues to consider this recommendation. In 

general, OSHA has learned that a multi-pronged approach, 

which encompasses ways to educate employers and employees about existing standards and best practices, combined with outreach, training and, of course, effective enforcement efforts, is the best way to address most Occupational safety and health hazards, including those arising 

from combustible dust.10

Unfortunately, OSHA’s responses to the combustible dust hazard—educational materials and the National Emphasis Program—

have not been adequate. OSHA’s combustible dust SHIB and other 

informational publications are useful for employers who want information about combustible dust hazards, but as with other OSHA 

compliance assistance documents, these guidelines cannot be used 

for enforcement. Tammy Miser pointed out the confusion this may 

cause: 

At the very beginning, the first things that [the SHIB] 

says, it says, this safety and health information bulletin is 

not a standard or a regulation. It creates no legal obligations. 

I do not see how this can be expected to be taken seriously, when they are sitting there telling them, right off 

the bat, that there is really no legal obligation for this.11

According to CSB Acting Chairman William Wright: 

I am encouraged that OSHA has sent out 30,000 letters, 

advising and apprising people in various industries of the 

potential hazards, and to raise their awareness. 

But this is basic knowledge. It does not set the bar with 

respect to a standard. 

And that is why we still hold with our recommendation 

that a formal standard should be adopted that everybody 

will abide by. And that will also increase the awareness of 

inspectors, as well as employers, with respect to the dust 

hazard.12

Indeed, preliminary findings of the CSB show that OSHA’s compliance assistance efforts had little apparent effect on Imperial 

Sugar’s adoption of safe combustible dust procedures. 

This facility was decades old and had many horizontal 

surfaces where dust could collect. These included overhead 

floor joists, rafters, ductwork, piping, and equipment. WitVerDate Aug 31 2005 00:05 Apr 25, 2008 Jkt 069006 PO 00000 Frm 00009 Fmt 6659 Sfmt 6602 E:\HR\OC\HR601.XXX HR601

bajohnson on PROD1PC77 with REPORTS
10 

13 H.R. 5522, The Combustible Dust Explosion and Fire Prevention Act of 2008, Hearing before the Committee on Education and Labor, 110th Congress, 2nd Session (2008) (Written testimony of William Wright) [Hereinafter Wright Testimony]. 14 H.R. 5522, The Combustible Dust Explosion and Fire Prevention Act of 2008, Hearing before the Committee on Education and Labor, 110th Congress, 2nd Session (2008) (Written testimony of Edwin Foulke) [Hereinafter Foulke Testimony]. 15Occupational Safety and Health Administration, CPL 03–00–006—Combustible Dust National Emphasis Program, October 18, 2007. 

nesses have described substantial, snow-like accumulations of sugar dust on these surfaces. 

Most employees and contractors had received little training on the explosion hazard from the accumulated dust. 

No witnesses have indicated that the facility had a program to fully implement NFPA standards for combustible 

dust.13

Nor are the enforcement efforts being conducted under the NEP 

adequate. Under the NEP, OSHA plans to cite employers for combustible dust hazards using a variety of existing general standards, 

such as housekeeping (which requires employers to clean up the 

dust), electrical standards (which control some ignition sources) 

and the General Duty Clause, that requires employers to address 

‘‘recognized’’ hazards even where there is no OSHA standard. The 

General Duty Clause is difficult to enforce and is mostly used after 

an incident. 

In the debate over whether an OSHA combustible dust standard 

is needed, Assistant Secretary Ed Foulke has argued that existing 

OSHA are adequate to address combustible dust issues: 

OSHA already has tough and effective standards and 

policies on the books that address combustible dust hazards, including the standards—and general requirements 

for housekeeping, electrical safety, ventilation, hazardous 

location, hazard communication and emergency action 

plans.14

Enforcement of these standards is, according to Foulke, being 

used successfully to address combustible dust safety under a Combustible Dust National Emphasis Program announced in October 

2007 and revised in March 2008. 

Under the Combustible Dust NEP, OSHA will conduct around 90 

combustible dust inspections over the next year from a list of possible at-risk worksites supplied by the national office. OSHA issued 

a Compliance Directive 15 to provide instructions to OSHA inspectors on which existing OSHA standards can be used to enforce combustible dust precautions. 

Under the NEP, each of OSHA’s 90 Area Offices received a list 

of locations, which may have dust hazards and must randomly 

choose one to inspect in the coming year. The 26 State Plan States 

(such as California, Maryland, Michigan, Arizona, Iowa, Oregon, 

Hawaii and Virginia) are not required to participate. (The CSB had 

recommended that OSHA establish a Combustible Dust National 

Emphasis Program while it was working on a standard, not instead 

of a standard.) 

OSHA will attempt to cite employers under the NEP using a variety of related standards such as housekeeping (which requires 

employers to clean up the dust), electrical standards (which control 

some ignition sources) and the General Duty Clause (which reVerDate Aug 31 2005 00:05 Apr 25, 2008 Jkt 069006 PO 00000 Frm 00010 Fmt 6659 Sfmt 6602 E:\HR\OC\HR601.XXX HR601

bajohnson on PROD1PC77 with REPORTS
11 

16 H.R. 5522, The Combustible Dust Explosion and Fire Prevention Act of 2008, Hearing before the Committee on Education and Labor, 110th Congress, 2nd Session (2008) (Written testimony of William Wright) [Hereinafter Wright Testimony]. 17 H.R. 5522, The Combustible Dust Explosion and Fire Prevention Act of 2008, Hearing before the Committee on Education and Labor, 110th Congress, 2nd Session (2008) (Oral testimony of David Sarvadi) [Hereinafter Sarvadi Testimony]. 

quires employers to address ‘‘recognized’’ hazards even where there 

is no OSHA standard). 

These existing standards cannot be used as effectively as a dedicated combustible dust standard. As CSB Acting Chairman William 

Wright testified: 

OSHA’s existing requirements, including the general 

duty clause and the housekeeping standard, apply to combustible dust hazards. However, a comprehensive dust 

standard would be more effective, by focusing both employers’ and inspectors’ attention on this hazard and the steps 

that should be taken to prevent dust explosions and 

fires.16

OSHA standards have two purposes: to educate the employer 

about what needs to be done to prevent the hazard and comply 

with the law. And second, to indicate to the OSHA inspector which 

standards can be used to cite an employer when hazardous conditions exist. 

Although there are a variety of existing OSHA standards that inspectors can interpret to apply to combustible dust hazards (which 

satisfies the need to provide a legal basis for inspectors to enforce 

safe working conditions), most of the existing standards (e.g. housekeeping and General Duty) do nothing to educate or inform employers about how to prevent combustible dust explosions. 

For example, the often-cited ‘‘housekeeping standard,’’ (29 CFR 

1910.22(a)), originally written to ensure that puddles and refuse 

don’t cause slipping and tripping hazards, is now used for combustible dust violations. The relevant parts of this standard simply 

state that ‘‘(1) All places of employment, passageways . . . and 

service rooms shall be kept clean . . . (2) The floor of every workroom shall be maintained in a clean . . . condition.’’ It contains 

nothing about what levels of dust are safe, how to clean dust safely 

or how to prevent dust from accumulating to unsafe levels. 

An example of the importance of dedicated dust standards that 

contain specific information about how to prevent combustible dust 

explosions was demonstrated during the March 12 hearing in 

which David Sarvadi, an attorney and industrial hygienist, noted 

the difficulty involved in preventing a 2003 dust explosion at West 

Pharmaceuticals in which fugitive dust had gathered above the 

suspended ceiling. Sarvadi noted that: 

Without getting into any great detail—I can certainly 

talk about this at length—but I can tell you that, given the 

way that the plant was designed, given the materials that 

were involved, I do not think it was knowable in advance 

that this dust would accumulate above the ceiling, because 

of the nature of the chemicals that were involved, and the 

nature of the processes. 

And that is one of the difficulties that we have. People 

are fallible. They make mistakes.17


bajohnson on PROD1PC77 with REPORTS
12 

18 National Fire Protection Association, NFPA 654, Standard for the Prevention of Fire and 

Dust Explosion from the Manufacturing, Processing, and Handling of Combustible Particulate 

Solids, 2006. 19 U.S. Chemical Safety and Hazard Investigation Report, Combustible Dust Hazard Study, 

Report No. 2006–H–1, November 2006. 20 U.S. Chemical Safety and Hazard Investigation Report, Combustible Dust Hazard Study, 

Report No. 2006–H–1, November 2006. 21 H.R. 5522, The Combustible Dust Explosion and Fire Prevention Act of 2008, Hearing before the Committee on Education and Labor, 110th Congress, 2nd Session (2008) (Written testimony of William Wright) [Hereinafter Wright Testimony]. 

In fact, however, NFPA 654 specifically states that ‘‘Spaces inaccessible to housekeeping shall be sealed to prevent dust accumulation.’’ 18 Nowhere does OSHA’s housekeeping standard warn about 

concealed dust in accessible areas. The CSB concluded that if 

NFPA standards had been followed, the West explosion would probably have been prevented.19

A second reason that existing OSHA standards are inadequate to 

prevent combustible dust explosions is that it is overly burdensome 

for both employers OSHA inspectors to use numerous existing 

standards to cite employers for unsafe combustible dust conditions. 

The compliance directive that lays out OSHA’s combustible dust 

National Emphasis Program lists more than 25 separate OSHA 

standards that inspectors may use to cite combustible dust hazards, depending on the circumstances. 

For example, in order to cite under OSHA’s General Duty Clause 

(which simply requires employers to keep the workplace safe from 

‘‘recognized hazards’’) inspectors are told to familiarize themselves 

with NFPA standards and the employer’s safety manuals. They are 

instructed to ‘‘search for articles dealing with the combustible dust 

hazard in publications dealing with the employer’s industry.’’ This 

is much more burdensome for inspectors and employers than simply citing clear, obvious violations of a standard. The CSB also 

noted that General Duty Clause citations occur primarily after an 

incident has occurred and are therefore not generally useful in preventing such incidents.20

In conclusion, the general nature and lack of specificity accompanying current OSHA standards make them a poor substitute for 

a dedicated OSHA combustible dust standard. As CSB Acting 

Chair Wright testified: 

Absent a comprehensive OSHA standard for combustible 

dust, no one can be confident that dust hazards will be 

cited and corrected prior to the occurrence of additional accidents.21

Workers are paying the price for OSHA inaction 

The CSB identified 281 combustible dust incidents between 1980 

and 2005 that killed 119 workers and injured 718, and extensively 

damaged industrial facilities. A total of 24% of the explosions occurred in the food industry, including several at sugar plants. 

The CSB report concluded that ‘‘combustible dust explosions are 

a serious hazard in American industry, and that existing efforts inadequately address this hazard.’’

Tammy Miser, whose brother, Shawn Boone, was killed in a 2003 

combustible dust explosion at Hays Lemmerz, described the suffering that her brother and her family endured: 


bajohnson on PROD1PC77 with REPORTS
13 

22 H.R. 5522, The Combustible Dust Explosion and Fire Prevention Act of 2008, Hearing before the Committee on Education and Labor, 110th Congress, 2nd Session (2008) (Written testimony of Tammy Miser) [Hereinafter Miser Testimony]. 23 H.R. 5522, The Combustible Dust Explosion and Fire Prevention Act of 2008, Hearing before the Committee on Education and Labor, 110th Congress, 2nd Session (2008) (Written testimony of Tammy Miser) [Hereinafter Miser Testimony]. 24 Russ Bynum, ‘‘Burn victims in Georgia face long recovery,’’ Statesboro Herald, March 6, 

2008. 

Shawn did not die instantly. He laid on the building 

floor while the aluminum dust burnt through his flesh and 

muscle tissue. The breaths that he took burnt his internal 

organs, and the blast took his eyesight.22

Because of the horrific burns that Shawn Boone suffered, his 

family soon had to decide to withdraw life support. 

And even though we were not to blame, we were still 

making that decision. And we did. We watched the machines stopped, and we watched my brother die before our 

eyes. We watched him take his last breath. 

And the two things that I can always remember, and it 

never leaves, are his last words—‘‘I am in a world of 

hurt’’—and his last breath.23

Even the survivors endure terrible suffering. Paul Seckinger, a 

survivor of the Imperial Sugar explosion, was burned over 80 percent of his body. 

Three weeks after the explosion, Paul Seckinger opened 

his eyes for the first time in his hospital bed, looked up 

and smiled weakly at his mother. 

Two days later, his mother says, doctors had to halt surgery as they worked to repair the second- and third-degree 

burns over 80 percent of Seckinger’s body because his 

lungs had filled with fluid and his blood pressure plummeted. When his mother got back in to see him, she saw 

terror in the eyes that held so much hope the days before. 

‘‘His eyes were open real big and he was just looking at 

me like, ‘Mom, help me.’ It was very scary,’’ says Karen 

Seckinger, still shaken by her son’s sudden turn.24

But severe burn victims often never completely recover. Although 

not the result of a combustible dust explosion, a recent New York 

Times story about burn victims five years after the Station Nightclub fire in Warwick, RI, illustrates the life-long suffering that 

burn victims must endure: 

Savagely burned in the fire that incinerated the Station 

nightclub here five years ago next Wednesday, Linda Fisher has endured a dozen surgeries to salvage her arms, her 

hands, her face. 

Ms. Fisher inhaled so much smoke that anguishing 

night that even now, she gets winded carrying a basket of 

laundry. Her thick scars keep her from sweating normally, 

and she has trouble distinguishing hot from cold. 

Ms. Fisher feels lucky. 


bajohnson on PROD1PC77 with REPORTS
14 

25 Abby Goodnough, ‘‘5 Years After a Nightclub Fire, Survivors Struggle to Remake Their 

Lives,’’ New York Times, February 17, 2008. 26 According to the CSB investigation, dust accumulation above an unsealed suspended ceiling 

was a major factor in the 2003 West Pharmaceuticals explosion that killed 6 workers. 

‘‘There are survivors who have no ears, eyes, nose, hair,’’ she said.25

Workers can be protected against combustible dust fires and explosions 

The hazards of combustible dust explosions and how to prevent 

them have been known for many decades. The National Fire Protection Association currently has seven combustible dust standards 

covering a variety of specific workplace and methods of prevention. 

The first NFPA combustible dust standard was issued in 1923. 

NFPA Combustible Dust Standards: 

NFPA 654, Standard for the Prevention of Fire and Dust Explosions from the Manufacturing, Processing, and Handling of Combustible Particulate Solids 

NFPA 484 Standard for Combustible Metals 

NFPA 61, Standard for the Prevention of Fires and Dust Explosions in Agricultural and Food Processing Facilities 

NFPA 664, Standard for the Prevention of Fires and Explosions 

in Wood Processing and Woodworking Facilities 2007 Edition 

NFPA 91, Standard for Exhaust Systems for Air Conveying of 

Vapors, Gases, Mists, and Noncombustible Particulate Solids 2004 

Edition 

NFPA 655, Standard for Prevention of Sulfur Fires and Explosions 2007 Edition 

NFPA 120, Standard for Fire Prevention and Control in Coal 

Mines 2004 Edition 

The NFPA standards all have certain features in common: 

• Control and minimizing of fugitive dust emissions: Minimizing 

the amount of dust that is allowed to escape into the general environment is the best way to ensure that dangerous amounts of dust 

do not accumulate. NFPA standards include maintenance and operation of equipment in a manner that minimizes the escape of dust. 

They also include measures to minimize the accumulation of 

dust, such as requirements that window ledges, girders, beams, 

and other horizontal projections or surfaces have the tops that are 

sharply sloped, or other provisions to minimize the deposit of dust. 

NFPA 654 requires that ‘‘Spaces inaccessible to housekeeping shall 

be sealed to prevent dust accumulation.’’ NFPA 484 has similar requirements.26

• Housekeeping and safe clean-up of fugitive dust: Ensuring that 

dust accumulations do not build up to dangerous levels and that 

dust accumulations are cleaned up safely are key to preventing explosions. Standards include, for example, limits of dust accumulations to 1⁄32nd of inch, control of ignition sources, and prohibition 

of any measures that may create dust clouds, such as ‘‘vigorous 

sweeping or blowing down with steam or compressed air’’ unless all 

ignition sources are completely eliminated. 

• Mitigation and minimization of the effect of explosions: The 

human and material effects of explosions can be minimized by ensuring that if small explosions do occur, they are vented to reduce 

their intensity and that they are confined so as not to cause more 


bajohnson on PROD1PC77 with REPORTS
15 

27 U.S. Chemical Safety and Hazard Investigation Board, Investigation Report Report No. 

2006–H–1, Combustible Dust Hazard Study, November 2006. 28 H.R. 5522, The Combustible Dust Explosion and Fire Prevention Act of 2008, Hearing before the Committee on Education and Labor, 110th Congress, 2nd Session (2008) (Written testimony of William Wright) [Hereinafter Wright Testimony]. 

destructive secondary explosions. Requirements include, for example, location of dust collectors outside of occupied parts of the building, wide separation of occupied parts of the plant, and explosion 

venting to minimize the power of explosions. 

• Specific process or machinery-related precautions: Although ignition sources are difficult to eliminate, measures can be taken. Depending on the type of operation, standards include specific instructions regarding foreign (sparking) materials, belts, bearings, electrical equipment, static electricity, hot work, hot surfaces, industrial trucks. 

• Management of Change: These standards require measures to 

ensure that any change in process or materials do not introduce 

new or increased hazards into the working environment. 

• Worker Training: These standards address the need for workers to be trained about operating and maintenance procedures and 

emergency plans. 

NFPA standards have proven to be highly effective in preventing 

combustible dust explosions according to the Chemical Safety 

Board.27 Compliance with the standards, according to the CSB 

would have prevented the fatal explosions that the CSB investigated in 2003: 

The CSB found that if the requirements of NFPA 654 

had been applied at West and CTA, the incidents would 

have been prevented or significantly mitigated. Specifically, CTA and West had not implemented NFPA recommended practices, including analyzing their processes 

for hazards, controlling fugitive dust emissions and ignition sources, constructing buildings to address dust hazards, and training employees. NFPA 654 requires, for example, that ‘‘spaces inaccessible to housekeeping shall be 

sealed to prevent dust accumulation’’ and that ‘‘interior 

surfaces where dust accumulations can occur shall be 

sealed and constructed so as to facilitate cleaning and to 

minimize combustible dust accumulations.’’ However, at 

West dust that accumulated above a suspended ceiling was 

difficult to detect and remove. 

Similarly, the CSB investigation revealed that the CTA 

facility did not conform to NFPA 654, which requires that 

facilities minimize horizontal surfaces where dust can accumulate, equip buildings with explosion venting, and 

clean surfaces ‘‘in a manner that minimizes the generation 

of dust clouds.’’ 28

In addition to the NFPA standards, in 1987, OSHA issued a 

Grain Handling Facilities standard, part of which addressed combustible dust hazards. That standard, which only applies to Grain 

handling facilities also contains many of the elements found in the 

NFPA standards, including: • Housekeeping specifications • Location of dust collectors outside the building 


bajohnson on PROD1PC77 with REPORTS
16 

29 ‘‘Workers’ Memorial Day—April 28, 2007,’’ Morbidity and Mortality Weekly Report, 56(16) 

(Apr. 27, 2007) at 389–393. 30 Have OSHA Standards Kept up With Workplace Hazards? Hearing before the Subcommittee on Workforce Protections, 110th Congress, 1st Session (2007) (written testimony of 

Frank Mirer, at 3) [Hereinafter Mirer testimony]. 

• Inspections and maintenance of operating equipment to reduce 

sparks and heat • Minimization of accumulated grain dust • Worker training 

In 2003, OSHA published an evaluation of that standard. OSHA 

found that not only had the standard saved lives, but had also 

earned industry support. According to the Chemical Safety Board’s 

review of the evaluation: 

[S]ince the standard had been instituted, grain explosions were down 42 percent, injuries 60 percent, and fatalities from grain explosions 60 percent. On average, OSHA 

estimates that the Grain Handling Facilities Standard has 

prevented five deaths per year. The National Grain and 

Feed Association (NGFA) stated that its industry had experienced ‘‘an unprecedented decline in explosions, injuries 

and fatalities at grain handling facilities’’ since 1980. Further, the NGFA credited the standard with stimulating 

technological advances in the design, layout, and construction of grain handling facilities. 

The OSHA standard-making process is not protecting workers 

The Bureau of Labor Statistics reported that in the year 2005 

there were over 5,700 workers, or 16 workers a day, killed in the 

workplace. NIOSH estimates that almost 60,000 workers die each 

year of occupational disease, many of which are caused by exposure 

to toxic chemicals.29

OSHA’s standard-making process has broken down in recent 

years. Dr. Frank Mirer of Hunter College, testifying at the Workforce Protections Subcommittee hearing on April 24, 2007, discussed the breakdown of OSHA’s standard making process: 

OSHA, since 2001, has checked out of the standards 

business. Slow progress in earlier years has ground to a 

halt and may even be moving stealthily backward. OSHA 

has staff and other resources to set standards, but that 

staff has not been permitted to operate. Since 2001, this 

Administration set one new chemical standard, for carcinogenic chromium, under court order. That standard actually 

permits employers to increase exposure levels under some 

circumstances. Unions were forced to sue to get improvements, and that litigation still pends. Regarding employers’ responsibility to pay for required protective equipment 

like respirators and wire mesh gloves, Labor Secretary 

Elaine Chao finally committed to issuing a final rule in response to a union lawsuit and a court ordered deadline. 

That rule was promised by November 2007. The rulemaking record was completed in 1999.30

Part of the problem is the administrative burden put on OSHA. 

In order to issue standards, the agency must comply with the Administrative Procedures Act which requires significant public 


bajohnson on PROD1PC77 with REPORTS
17 

31 Have OSHA Standards Kept up With Workplace Hazards? Hearing before the Subcommittee on Workforce Protections, 110th Congress, 1st Session (2007) (written testimony of 

Frank Mirer) [Hereinafter Mirer testimony]. 32 Have OSHA Standards Kept up With Workplace Hazards? Hearing before the Subcommittee on Workforce Protections, 110th Congress, 1st Session (2007) (written testimony of 

Scott Schneider) [Hereinafter Schneider Testimony]. 

input. In addition, since the OSH Act was passed, laws have been 

passed and Executive Orders have been issued adding additional 

requirements to OSHA rulemaking. Executive Orders, most particularly EO 12866 requires review by the White House Office of 

Management and Budget. The Regulatory Flexibility Act requires 

OSHA to address the potential impact of regulations on small businesses. The Small Business Regulatory Enforcement Fairness Act 

of 1996 which requires OSHA to convene a Small Business Advocacy Review Panel which hears comments from small entity representatives and reviews the draft proposed prepares a written report. OSHA must review the report and make any appropriate revisions to the rule. 

All of these requirements add considerable time to the development of OSHA standards. But experts in this area, including Scott 

Schneider and Frank Mirer who testified in the Subcommittee’s 

April 24 OSHA standards hearing, have also pointed out that one 

of the most important factors in the slowdown of OSHA rulemaking 

is lack of political will. Frank Mirer expanded on the political obstacles: 

The first barrier to setting a new standard is getting the 

Labor Department to recognize that something needs to be 

done about a hazard. That’s a political leadership decision. 

Once there’s a decision to move forward, the task that 

causes the most delay is gathering business data to estimate costs. But, OSHA staff have figured out how to get 

that cost information. After that, the barriers, and sources 

of delay, are getting approval from the Office of Management and Budget to put a standard on the agenda, complete the small business (SBREFA) review, to release a 

proposed standard, and to finally promulgate the final 

standard. But, OMB is not a free agent. The same President who appointed the Secretary of Labor and Assistant 

Secretary of Labor for OSHA also appointed the heads of 

OMB and the Small Business Administration.31

Scott Schneider, testifying at the Workforce Protections subcommittee hearing on April 24, 2007, also cited lack of political will 

as a major cause of the failure of OSHA to issue standards for the 

past six years.32

OSHA standards protect workers from occupational disease and injury 

One of the most important responsibilities that Congress gave 

OSHA under the Occupational Safety and Health Act is the 

issuance of safety and health standards. Congress declared in passage of the Act that its ‘‘purpose and policy’’ was ‘‘to assure so far 

as possible every working man and woman in the Nation safe and 

healthful working conditions . . . by providing for the development 

and promulgation of occupational safety and health standards.’’


bajohnson on PROD1PC77 with REPORTS
18 

The need for an interim standard 

The Committee has determined that exposure to the hazards of 

combustible dust explosions and fires presents the sort of grave 

danger to workers that warrants immediate action. The Chemical 

Safety Board combustible dust study found that ‘‘combustible dust 

explosions are a serious hazard in American industry, and that existing efforts inadequately address this hazard.’’ The CSB identified 

281 combustible dust incidents between 1980 and 2005 that killed 

119 workers and injured 718, and an addition 67 combustible dust 

explosions since 2005, including the Imperial Sugar explosion that 

killed 13 workers. Combustible dust hazards have long been recognized. The first NFPA combustible dust standard was issued in 

1923, 85 years ago. Despite this grave and well recognized hazard, 

OSHA has failed to develop a comprehensive standard that would 

protect workers. 

The Wilson Amendment in the nature of a substitute that was 

defeated by a voice vote would have allowed OSHA to wait for the 

outcome of the Imperial Sugar investigation and findings from the 

combustible dust NEP before deciding on whether to move forward 

with a standard. Given all that is known about the causation and 

prevention of combustible dust explosions, however, the Committee 

believes that it is highly unlikely that anything profoundly new 

about the nature, causation or prevention of combustible dust explosion would be gained by further delay. 

The Committee also believes that evidence from recent incidents 

and the CSB reports show that compliance assistance efforts such 

as OSHA’s Safety and Health Information Bulletin, website and 

other materials developed by OSHA are useful tools, but are not 

sufficient to protect workers from the threat of combustible dust explosions. 

Furthermore, the Committee also does not feel that the 17 existing OSHA standards being used by OSHA to enforce combustible 

dust safety violations are adequate to effectively address the prevention of combustible dust explosions and fires in American industry. H.R. 5522 therefore requires OSHA to issue an Interim Final 

Standard within 90 days of enactment to be followed by a final 

standard that would be promulgated within 18 months. 

The interim standard would be required to include hazard assessment, a written program, engineering and administrative controls, specifications for housekeeping and control of ignition 

sources, worker participation and worker training. These requirements would codify many of the measures that OSHA is now undertaking under its combustible dust NEP. It would apply to all 

workplaces where there is a potential for combustible dust explosions except those workplaces already covered under OSHA’s Grain 

Handing Facilities Standard (29 CFR 1910.272.) 

The interim regulation is not an occupational safety and health 

standard as that term is defined in section 3(8) of the Occupational 

Safety and Health Act of 1970 and must be adopted notwithstanding any other provision of law. The Secretary of Labor has 

previously recognized in promulgating a standard regulating hazardous waste operations the distinction between an interim regulation and an occupational safety and health standard is legally significant because it means that the procedural requirements of section 6 of the OSH Act do not apply to the promulgation of the inVerDate Aug 31 2005 00:05 Apr 25, 2008 Jkt 069006 PO 00000 Frm 00018 Fmt 6659 Sfmt 6602 E:\HR\OC\HR601.XXX HR601

bajohnson on PROD1PC77 with REPORTS
19 

33Secretary of Labor v. Manganas Painting Company Inc, OSHRC Docket No. 94–0588 (March 

23, 2007). 

terim final regulation. Nor, as the Secretary has previously recognized in publishing an interim final regulation governing hazardous waste operations, do the notice and comment provisions of 

the Administrative Procedures Act apply. 

The Committee relied upon these precedents when it directed the 

Secretary of Labor to publish an interim final regulation governing 

lead exposure in the construction industry. 

The Committee intends that the Secretary rely on similar procedures to publish an interim final regulation governing combustible 

dust explosions within three months. These procedures have recently been upheld by OSHRC the Occupational Safety and Health 

Review Commission (OSHRC) in the Manganas Painting Co, Inc 

decision. OSHRC agreed with the Secretary of Labor’s assessment 

of Congressional intent which cited: 

The preamble to the lead in construction standard that ‘‘Congress . . . did not impose any procedural requirements 

that must be followed’’ and that Congress intended that ‘‘the Secretary need not follow the procedural requirements 

of the OSH Act or the APA [Administrative Procedure Act, 

5 U.S.C. § 553].’’ 58 Fed. Reg. at 26,591.33

While the Secretary is authorized to publish the interim regulation without the notice and comment procedures required by section 6 of the OSH Act, it is the Committee’s expectation that OSHA 

will work closely with the National Fire Protection Association, the 

International Code Council, affected industry and labor representatives and other experts in developing the interim final combustible 

dust standard. 

The final standard 

H.R. 5522 requires OSHA, within 18 months of enactment, to 

issue a permanent standard regulating worker exposure to combustible dust explosion and fire hazards in compliance with section 

6(b) of the Occupational Safety and Health Act (OSH Act). The 

Committee is confident that this standard can be issued within the 

timeframe allotted. 

H.R. 5522 does not exempt OSHA from the requirements of section 6 of the OSH Act that Congress and the courts have established to ensure that OSHA standards reflect the best science 

available, or that the standards are technologically and economically feasible. In addition, regulatory oversight laws, including the 

Administrative Procedures Act, the Small Business Regulatory Enforcement Fairness Act (SBREFA), the Regulatory Flexibility Act, 

the Paperwork Reduction Act, or Executive Order 12866 are flexible enough to provide for expedited action in emergency situations 

like these. 

Eighteen months provides adequate time for OSHA to develop 

the evidence and findings necessary to issue a final standard. Extensive studies, consensus standards and investigations exist to 

provide OSHA core information needed to develop a standard. 

In order to issue a standard under Section 6(b) of the Act, OSHA 

also has a number of procedural requirements that must be satisfied. Again, because of the emergency nature of this problem, 


bajohnson on PROD1PC77 with REPORTS
20 

34P.L. 104–121. Small Business Regulatory Enforcement Fairness Act of 1996. 35P.L. 96–354. Regulatory Flexibility Act of 1980, as amended. 36Mirer Testimony at 5. 37 Have OSHA Standards Kept up With Workplace Hazards? Hearing before the Subcommittee on Workforce Protections, 110th Congress, 1st Session (2007), Letter from Dr. Adam 

Finkel to Rep. Lynn Woolsey (May 8, 2007). 38P.L. 99–499. Superfund Amendments and Reauthorization Act of 1986, Title I Sec. 126 a–

f (Oct. 26, 1986). 39P.L. 101–549. Title III, Sec. 304 (Nov. 15, 1990). 

OSHA will be able to meet those requirements within the 18 month 

timeframe. SBREFA,34 the Regulatory Flexibility Act,35 Executive 

Order 12866 and the Paperwork Reduction Act contain flexible provisions for waivers, delay or acceleration of their requirements 

under emergency conditions or other special circumstances. The 

Committee expects OSHA, the Small Business Administration, the 

Office of Management and Budget, and other agencies involved in 

the regulatory process to fully utilize whatever actions are necessary and permitted within relevant laws and executive orders affecting the regulatory process to ensure that this mandated Congressional deadline is met. 

Experts confirm that OSHA can issue standards much faster 

than the agency has acted over the past several years. Frank Mirer 

expressed confidence that OSHA should be capable of issuing 

standards much faster than it currently does, even starting from 

scratch.36

Adam Finkel, Sc.D., CIH, Professor of Environmental and Occupational Health at the UMDNJ School of Public Health, and a visiting professor of public affairs at the Woodrow Wilson School at 

Princeton University, submitted testimony for the record following 

the April 24 hearing on OSHA standards, stating that despite the 

many requirements for OSHA to invite participation by stakeholders and respond substantively to their comments, standards 

can be completed ‘‘cleanly and rather quickly.’’ Finkel is the former 

Director of Health Standards for OSHA. 

In one 18-month period of activity (late 1996 to early 

1998)—OSHA promulgated three major final health standards—those for 1,3-butadiene, methylene chloride, and generic respiratory protection—and defended them in Congressional oversight hearings and court challenges, without a single provision being substantively weakened following any of this scrutiny.37

History of Congressional intervention in OSHA rulemaking 

Congress has a long history of mandating OSHA regulation to 

protect workers when the Agency fails to act on its own. HR 5522 

continues the Congress’s tradition of ensuring that OSHA acts 

promptly when faced with evidence that American workers face 

grave dangers and delay will result in needless illness and death. 

In 1986, as part of the Superfund Amendments and Reauthorization Act (SARA), Congress mandated the issuance an ‘‘interim’’

standard for Hazardous Waste Operations and Emergency Response within 60 days and a final standard within one year of 

SARA’s enactment.38 In 1990, as part of the Clean Air Act Amendments, Congress required OSHA to issue the Process Safety Management standard within one year. Congress also included directions on the content of the standard.39 In 1991, Congress ordered 


bajohnson on PROD1PC77 with REPORTS
21 

40P.L. 102–170. Departments of Labor, Health and Human Services, and Education, and Related Agencies Appropriations Act, Sec. 100 (1992). 41P.L. 102–550. This interim final rule was mandated by, and issued under the exclusive authority of, title X, subtitle C, sections 1031 and 1032, Worker Protection, of the Housing and 

Community Development Act of 1992. 42P.L. 106–430. Needlestick Safety and Prevention Act. 43Schneider Testimony at 5. 

OSHA to issue the final Bloodborne Pathogens Standard by a certain date, and stated that if that deadline was not met, the previously published proposed standard would take effect.40 In 1992, 

Congress mandated OSHA to issue the Lead in Construction standard and required the new standard to be ‘‘as protective’’ as the U.S. 

Department of Housing and Urban Development’s worker protection guidelines for identification and abatement of lead based paint 

in certain housing. The standard was issued in 1993.41 Finally, in 

2000, Congress required OSHA issue an update to the Bloodborne 

Pathogens standard, requiring safer syringes and sharps.42 That 

standard was issued in 2001. 

Some OSHA experts feel that Congress must take a much more 

active role in encouraging OSHA to issue standards that protect 

workers’ health and safety; Scott Schneider, who testified at the 

April 2007 standards hearing argued in favor of Congress setting 

strict time limits for OSHA to issue standards: 

Congress can set time limits for OSHA to consider and 

then issue proposals and final rules. In the past Congress 

has mandated that OSHA issue rules within a six-month 

period and the agency has done so (e.g. lead, hazardous 

waste). Congress should give OSHA a limited time, say 

four months, to consider any petition for new standards 

and require the agency to publish a response in the Federal Register as to its reasons for accepting or denying the 

petition. The burden should be on the agency to show why 

a standard should not be issued. Once committed to a rule 

making, the agency would be given additional deadlines to 

meet to ensure that rules are issued in a timely manner, 

say no more than three years. Congress would have to provide additional funding for OSHA dedicated to standard 

setting in order for it to meet these deadlines.43

Due to the high number of deaths and serious injuries caused by 

combustible dust explosions and the ready availability of means to 

prevent worker exposure, HR 5522 requires OSHA to take swift action to protect workers. 

SECTION-BY-SECTION ANALYSIS

Section 1. Short title 

Provides that the Short Title is the ‘‘Combustible Dust Explosion 

and Fire Prevention Act of 2008.’’

Section 2. Findings 

This section declares that an emergency exists concerning worker 

exposure to combustible dust explosions and fires and that a standard is urgently needed to protect workers. This section establishes 

that there is strong evidence documenting the hazards of combustible dust explosions as well as the feasibility and effectiveness of 

measures to prevent combustible dust explosions. Additionally, 


bajohnson on PROD1PC77 with REPORTS
22 

OSHA has taken no action to begin the development of a standard 

and has not taken other significant action to protect workers. 

Section 3. Issuance of standard on combustible dust 

Section 3(a)(1). Requires the Secretary of Labor to issue an interim final standard regulating combustible dusts within not later 

than 90 days after enactment. Defines the scope of the interim 

standard and states that it shall not apply to processes already covered by OSHA’s standard on grain handling facilities. 

Section 3(a)(2)(A). States that the interim final standard must require hazard assessments to identify, evaluate and control combustible dust hazards. 

Section 3(a)(2)(B). States that the interim final standard must require employers to develop a written program which includes plans 

for hazardous dust inspection, testing, housekeeping, and control, 

with established frequency and methods. 

Section 3(a)(2)(C). States that the interim final standard must require engineering, administrative controls and operating procedures. 

Section 3(a)(2)(D). States that the interim final standard must 

require housekeeping to control accumulation of combustible dust. 

Section 3(a)(2)(E). States that the interim final standard must require employee participation in hazard assessment, development of 

and compliance with the written program, and other elements of 

hazard management. 

Section 3(a)(2)(F). States that the interim final standard must require the provision of written safety and health information and 

training to employees, including hazard communication information, labeling, and training. 

Section 3(a)(3). Exempts the interim final standard from procedural requirements normally mandated for a permanent standard. 

Section 3(a)(4). Requires the interim final standard to take effect 

30 days after issuance, have the legal effect of an OSHA standard, 

and remain in effect until a final standard becomes effective. 

Section 3(b)(1). Mandates OSHA to issue a final standard regulating combustible dust hazards not later than eighteen months 

from the date of enactment. 

Section 3(b)(2)(A). Requires the final standard to include the 

scope described in Section 3(a)(1). 

Section 3(b)(2)(B). States that the final standard must contain 

the worker protection provisions in Section 3(a)(2) of the interim 

final standard. 

Section 3(b)(2)(C). States that the final standard must require 

procedures for managing change of dust producing materials, technology, equipment, staffing, and procedures. 

Section 3(b)(2)(D). States that the final standard must require 

safe building design. 

Section 3(b)(2)(E). States that the final standard must require 

provisions for explosion protection. 

Section 3(b)(2)(F). Requires OSHA to review and adopt appropriate and relevant provisions of National Fire Protection Association combustible dust standards. 


bajohnson on PROD1PC77 with REPORTS
23 

Section 4. Revision of the Hazard Communication Standard 

Section 4(a). Requires OSHA to revise the definition of ‘‘physical 

hazard’’ in the Hazard Communication Standard to include ‘‘a combustible dust’’ within six months 

Section 4(b). States that changes in the Hazard Communication 

Standard shall remain in effect until OSHA further revises the 

standard. 

Section 4(c). States that the modification of the Hazard Communication Standard will take effect within 30 days after publication. 

VI. EXPLANATION OF AMENDMENTS

None. 

VII. APPLICATION OF LAW TO THE LEGISLATIVE BRANCH

Section 102(b)(3) of Public Law 104–1, the Congressional Accountability Act, requires a description of the application of this bill 

to the legislative branch. H.R. 5522 has no direct application to the 

legislative branch. 

VIII. UNFUNDED MANDATE STATEMENT

Section 423 of the Congressional Budget and Impoundment Control Act (as amended by Section 101(a)(2) of the Unfunded Mandates Reform Act, P.L. 104–4) requires a statement of whether the 

provisions of the reported bill include unfunded mandates. (The attached CBO letter addresses this issue.) 

IX. EARMARK STATEMENT

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. 

X. ROLLCALL

None. 

XI. STATEMENT OF OVERSIGHT FINDINGS AND RECOMMENDATIONS OF

THE COMMITTEE

In compliance with clause 3(c)(1) of rule XIII and clause 2(b)(1) 

of rule X of the Rules of the House of Representatives, the Committee’s oversight findings and recommendations are reflected in the 

body of this report. 

XII. NEW BUDGET AUTHORITY AND CBO COST ESTIMATE

With respect to the requirements of clause 3(c)(2) of rule XIII of 

the Rules of the House of Representatives and section 308(a) of the 

Congressional Budget Act of 1974 and with respect to requirements 

of clause 3(c)(3) of rule XIII of the Rules of the House of Representatives and section 402 of the Congressional Budget Act of 1974, the 

Committee has received the following estimate for H.R. 5522 from 

the Director of the Congressional Budget Office: 


bajohnson on PROD1PC77 with REPORTS
24 

U.S. CONGRESS, CONGRESSIONAL BUDGET OFFICE, Washington, DC, April 17, 2008. 

Hon. GEORGE MILLER, 

Chairman, Committee on Education and Labor, 

House of Representatives, Washington, DC. 

DEAR MR. CHAIRMAN: The Congressional Budget Office has prepared the enclosed cost estimate for H.R. 5522, the Combustible 

Dust Explosion and Fire Prevention Act of 2008. 

If you wish further details on this estimate, we will be pleased 

to provide them. The CBO staff contact is Mindy Cohen. 

Sincerely, 

ROBERT A. SUNSHINE

(For Peter R. Orszag, Director). 

Enclosure. 

H.R. 5522—Combustible Dust Explosion and Fire Prevention Act of 

2008 

H.R. 5522 would require the Secretary of the Department of 

Labor (DOL) to issue regulations intended to protect workers from 

combustible dust explosions and fires. The bill would require the 

Secretary to issue interim standards and a final standard no later 

than 90 days and 18 months after enactment, respectively. 

Estimated costs to the Federal Government: Based on information provided by the Occupational Safety and Health Administration (OSHA) and other safety analysts, CBO estimates that implementing H.R. 5522 would cost $1 million in fiscal year 2009 and 

$41 million over the 2009–2013 period. 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. Enacting the 

bill would not affect revenues or direct spending. 

Impact on state, local, and tribal governments: Under current 

law, state laws governing occupational and health issues are preempted if they deal with the same subject matter regulated by 

OSHA. At least two states have implemented or are in the process 

of implementing standards to prevent combustible dust explosions. 

The standards in those states would be preempted by regulations 

promulgated under H.R. 5522. In order to maintain their own 

standards, the states would be required to demonstrate to OSHA 

that the state standards will be at least as effective as the standards promulgated by OSHA. If the state standards are determined 

to be less effective, the federal standards would apply. Preempting 

such state standards would be an intergovernmental mandate as 

defined in the Unfunded Mandates Reform Act (UMRA). Because 

the preemption would simply prohibit the application of state law, 

CBO estimates that the costs of the mandate would not be significant and would not exceed the threshold established by UMRA 

($68 million in 2008, adjusted annually for inflation). 

States may enforce federal job safety and health standards if 

they do so under an agreement with OSHA; currently, 26 states operate such programs. Those states might incur costs to administer 

and enforce the new standards that OSHA would be required to 


bajohnson on PROD1PC77 with REPORTS
25 

promulgate under the bill. However, those costs would be incurred 

as a result oftheir voluntary participation in a federal program, 

and half of those costs would be reimbursed through matching 

grants from the federal government under an existing program. 

Impact on the private sector: By requiring OSHA to issue rules 

regulating combustible dust hazards, the bill would impose privatesector mandates on employers at industrial establishments that 

manufacture, process, or otherwise handle materials that produce 

combustible dusts. The cost of those mandates is uncertain because 

it would depend on the rules to be established under the bill. Additionally, some employers already comply with safety requirements 

or voluntary industry standards that may overlap to some extent 

with the rules that would be developed by OSHA to address combustible dust hazards. Therefore, CBO cannot determine whether 

the aggregate costs of mandates in the bill would exceed the annual threshold established in UMRA for private-sector mandates 

($136 million in 2008, adjusted annually for inflation). 

Estimate prepared by: Federal costs: Mindy Cohen; Impact on 

state, local and tribal governments: Lisa Ramirez-Branum; Impact 

on the private sector: MarDestinee Perez. 

Estimate approved by: Keith J. Fontenot, Deputy Assistant Director for Health and Human Resources, Budget Analysis Division. 

XIII. STATEMENT OF GENERAL PERFORMANCE GOALS AND OBJECTIVES

In accordance with clause 3(c) of House rule XIII, the goal of 

H.R. 5522 is to provide basic health and safety protections for 

workers exposed to combustible dust fires and explosions. 

XIV. CONSTITUTIONAL AUTHORITY STATEMENT

Under clause 3(d)(1) of rule XIII of the Rules of the House of 

Representatives, the Committee must include a statement citing 

the specific powers granted to Congress in the Constitution to 

enact the law proposed by H.R. 5522. The Committee believes that 

the amendments made by this bill, which direct OSHA to issue an 

OSHA standard regulating worker exposure to combustible dust 

are within Congress’ authority under Article I, Section 8, Clause 3 

of the Constitution of the United States. 

XV. COMMITTEE ESTIMATE

Clause 3(d)(2) of rule XIII of the Rules of the House of Representatives requires an estimate and a comparison of the costs 

that would be incurred in carrying out H.R. 5522. However, clause 

3(d)(3)(B) of that rule provides that this requirement does not 

apply when the Committee has included in its report a timely submitted cost estimate of the bill prepared by the Director of the Congressional Budget Office under section 402 of the Congressional 

Budget Act. 

XVI. COMMITTEE CORRESPONDENCE

None. 


bajohnson on PROD1PC77 with REPORTS
(26) 

XVII. MINORITY VIEWS

MINORITY VIEWS ON H.R. 5522 

INTRODUCTION

Earlier this year, the community of Port Wentworth, Georgia suffered something no community should have to endure. As the result of an explosion at the Imperial Sugar Company refinery, a 

number of workers lost their lives, while many others sustained serious injuries. In the wake of that accident, Chairman George Miller and Representative Barrow moved quickly to propose legislation. While it is understandable, and even commendable, for Congress to respond swiftly in the aftermath of such a tragic accident, 

history has shown that legislating in this manner rarely produces 

sound policy. Committee Democrats have expedited the consideration of legislation introduced in response to the accident, without 

having the benefit of important information obtained as a result of 

the federal government’s investigation of the accident. We are concerned that such haste will result in the creation of an ineffective 

and unenforceable safety standard that will negatively impact 

many of our nation’s workplaces. 

Committee Republicans have a strong and long held commitment 

to workplace safety. Key toward accomplishing that goal is ensuring that the agency with regulatory jurisdiction is able to undertake a robust rulemaking process in order to create enforceable and 

effective rules. The danger of combustible dust in the workplace is 

a serious concern, and Committee Republicans are committed to 

helping the Occupational Safety and Health Administration 

(‘‘OSHA’’) achieve comprehensive safety standards that will ultimately improve worker safety and health. H.R. 5522, the Combustible Dust Explosion and Fire Prevention Act of 2008, falls far 

short of accomplishing that goal; and therefore, Committee Republicans must oppose the legislation in its current form. 

BACKGROUND

Imperial Sugar Company refinery explosion 

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 have died and many other workers suffered extensive burns. In the immediate aftermath of the incident, 

the local fire chief took command of the scene. The following day, 

once the fire was under control, the federal Bureau of Alcohol Tobacco and Firearms (ATF) took command of the site. Upon making 

an initial determination that the blast was not caused by criminal 

activity, the ATF turned the site over to OSHA on February 15, 

2008. This sequence of authority is not unusual for an accident of 

this nature. 


bajohnson on PROD1PC77 with REPORTS
27 

1 29 U.S.C. § 651 et seq. 2See 5 U.S.C. 5 et seq. 

3See 44 U.S.C. 3501 et seq. 

4See 5 U.S.C. 601 et seq. 

5See 5 U.S.C. 801 et seq. 

6Moreover, as a matter of practice, in recent years it has become a near-certainty that one 

or more stakeholders affected by a rule will pursue a legal challenge to OSHA’s final regulation. 

These challenges may result in a rule being upheld in its entirety; modified in some form or 

fashion by the courts; or struck down in its entirety. Once the final disposition of any legal challenges have been reached, a final rule is either implemented or revised according to court direction and subsequently administered by the Secretary of Labor through OSHA. 7See U.S. Chemical Safety and Hazard Investigation Board, Investigation Report: Combustible Dust Hazard Study, Report No. 2006–H–I (November 2006). 

Upon taking control of the site, OSHA immediately commenced 

its investigation into the cause of the explosion. By law, OSHA has 

six months to investigate the accident and, if appropriate, assess 

penalties to any party determined to have violated the Occupational Safety and Health Act (‘‘OSH Act’’ or the ‘‘Act’’).1 OSHA 

began subpoenaing documents from the company immediately after 

the agency took over the site, and has been actively engaged in the 

investigation from the outset. OSHA is the only agency with the 

statutory authority to penalize the company for violations of workplace safety law; if criminal behavior is found, OSHA may refer the 

matter to the Department of Justice for criminal prosecution. 

The OSH Act and workplace safety regulation 

Since its enactment in 1970, the OSH Act has fostered safe and 

healthy working environments through standards-setting, employer 

and worker education and training, and hazard elimination. The 

Act contains specific provisions intended to address workplace hazards through the process of rulemaking. 

Throughout its history, the OSHA Act’s standard-setting processes have been governed foremost by the Administrative Procedures Act (APA). The APA generally requires a federal agency to 

develop and draft proposed regulations; issue proposed rules and 

regulations via a transparent process that allows for comment and 

input from affected stakeholders; and incorporate appropriate 

stakeholder input in the publication of a final rule.2 In addition to 

the requirements of the APA, OSHA must ensure that its proposed 

regulations adhere to, inter alia, guidelines specified in Executive 

Orders, the Paperwork Reduction Act,3 the Regulatory Flexibility 

Act,4 the Small Business Regulatory Enforcement Fairness Act,5

and, ultimately, the Congressional intent of the underlying authorizing statute.6

Combustible dust and the OSH Act 

In sufficient concentrations, almost any type of dust found in the 

workplace can explode. In order for a combustible dust explosion to 

occur, five conditions must be present: combustible dust, an ignition source, oxygen, a dispersion of dust particles, and confinement 

of the dust cloud. Industries ranging from agriculture to metal finishing have the potential to experience dust explosions. According 

to a U.S. Chemical Safety and Hazard Investigation Board (‘‘CSB’’) 

report, dust was determined to have caused 281 fires and explosions over the last 25 years.7

To regulate the combustible dust hazard across industries, OSHA 

has used seventeen general standards currently in place under the 


bajohnson on PROD1PC77 with REPORTS
28 

8See Appendix A, Testimony of The Honorable Edwin G. Foulke, Jr., Committee on Education 

and Labor, ‘‘H.R. 5522, The Combustible Dust Explosion and Fire Prevention Act of 2008,’’

Wednesday, March 12, 2008. 9 29 CFR 1910.22. 

OSH Act. During his testimony before the Committee, Assistant 

Secretary for Occupational Safety and Health Edwin G. Foulke 

stated that the standards in place provide appropriate and adequate regulatory protection against combustible dust accidents, including the fire protection, ventilation and electrical standards.8

These standards also include the OSH Act’s ‘‘General Duty’’

Clause; its housekeeping standard, and its hazard communication 

regulation. The following three standards are of particular note: 

• General Duty Clause. The General Duty Clause (section 5(a)(1) 

of the OSH Act) requires that an employer must abate any hazard 

in the workplace which a reasonable employer in that industry 

knows or should know about, including those related to dust. 

• Housekeeping Standard. The OSHA Housekeeping Standard 

requires that employers maintain facilities in a clean, orderly, and 

sanitary condition.9 While the standard does not refer to dust specifically, it can form the basis for citation when dust accumulation 

leads to an explosion. 

• The Hazard Communication (‘‘HazCom’’) Standard. OSHA’s 

HazCom Standard requires that businesses monitor and inform 

employees of the hazards associated with certain materials in the 

workplace. The HazCom standard requires that every affected employer establish a program to inform employees of these hazards. 

The program must have five main components: (1) Written Hazard 

Communication Program documentation; (2) identification and inventory of hazardous chemicals; (3) maintenance of material safety 

data sheets (MSDS) 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. 

OSHA points specifically to the HazCom standard to demonstrate 

how employers should be aware of dust issues. Within the HazCom 

standard, employers are required to maintain MSDSs that list the 

hazards, including the combustibility, of materials brought onto a 

worksite. Moreover, OSHA has the authority to cite employers for 

failing to comply with these standards. In many cases, the agency 

does so after a combustible dust accident investigation concludes 

that the HazCom standard was, in fact, violated. 

The Chemical Safety and Hazard Investigation Board (CSB) 

The CSB is an independent federal agency charged with investigating industrial chemical accidents and their causes. While the 

CSB does not the authority to issue fines or citations, it does make 

recommendations to businesses, regulatory agencies such as OSHA 

and the Environmental Protection Agency (EPA), industry organizations, and labor representatives. According to its mission statement, the CSB was designed by Congress to be non-regulatory and 

independent of other agencies so that its investigations may, where 

appropriate, review the effectiveness of regulations and regulatory 

enforcement. 


bajohnson on PROD1PC77 with REPORTS
29 

10See U.S. Chemical Safety and Hazard Investigation Board, Investigation Report: Combustible Dust Hazard Study, Report No. 2006–H–1 (November 2006). 11The Imperial Sugar Company would have eventually received an inspection under the sitespecific-targeting of the NEP, but had not received an OSHA inspection in the prior seven years. 

Prior to the accident, the company’s low injury and illness rate made it a facility that did not 

qualify as a high hazard. 12See http://www.osha.gov/dsg/combustibledust/index.html. 

In November 2006, the CSB completed an investigative report of 

combustible dust.10 The report outlined the history of industrial 

dust explosions, citing 119 fatalities over a 25-year period. One key 

finding of the report noted OSHA’s success in dramatically reducing the risk of grain dust explosions by promulgating a grain 

standard in 1986. 

OSHA ACTIVITY RELATING TO COMBUSTIBLE DUST

Contrary to assertions made by the Majority, OSHA has not ignored the potential hazards related to combustible dust. Indeed, 

OSHA recognized the need to address combustible dust in a July 

2005 Safety and Health Information Bulletin (SHIB) that emphasized the hazards of combustible dust, controlling dust in the workplace, and the need for appropriate training. Additionally, in October 2007 OSHA responded to the November 2006 CSB report by 

implementing a National Emphasis Program (NEP) regarding combustible dust. The NEP includes the identification of facilities for 

awareness of dust hazards along with comprehensive compliance 

inspections.11 More recently, in the wake of the Port Wentworth, 

Georgia incident, OSHA sent a ‘‘high hazard’’ alert to 30,000 employers focusing on the issue of combustible dust and outlining 

measures that should be taken to maintain clean workplaces. 

OSHA continued to highlight the dangers related to combustible 

dust when it reissued the NEP on March 12, 2008, and consolidated the regulatory and educational information regarding dust 

into a user-friendly webpage.12 During testimony provided at the 

Full Committee hearing on H.R. 5522, Assistant Secretary Foulke 

further outlined the activities OSHA has taken to address combustible dust hazards: 

First, all Compliance Safety and Health Officers 

(CSHOs) receive training on OSHA safety standards, including those related to combustible dust. Additionally, for 

the past three years, the OSHA Training Institute has included a half day of training on the hazards of combustible 

dust in its course on Process Safety management. To date, 

323 compliance officers have received this additional halfday of training on combustible dust hazards. 

A three and a half day course, Combustible Dust Hazards and Controls, which is based upon the NEP, has also 

been developed. Forty compliance officers were trained 

during the first session of this course held the week of December 3, 2007. This training is ongoing, with the next 

session scheduled in spring 2008, and at least one session 

is planned annually thereafter. 

National Office staff has provided training and education on the subject of combustible dust in other venues. 

In June 2006, we delivered a presentation to an interVerDate Aug 31 2005 00:05 Apr 25, 2008 Jkt 069006 PO 00000 Frm 00029 Fmt 6604 Sfmt 6602 E:\HR\OC\HR601.XXX HR601

bajohnson on PROD1PC77 with REPORTS
30 

13Letter from Edwin G. Foulke, Jr. responding to questions for the record from Workforce Protections Subcommittee Chair Woolsey, March 27, 2008. 

national audience of fire production professionals at the 

National Fire Protection Association’s World Safety conference and Expo. In April 2007, OSHA staff provided 

training sessions to its consultation staff from throughout 

the country at the annual consultation conference. In January 2008, OSHA provided assistance to Maryland Occupational Safety and Health (MOSH) in training 70 MOSH 

compliance personnel in combustible dust hazards. Our 

Regional Offices have either retrained, or are planning to 

train, CSHOs in the Regions on combustible dust hazards. 

For example, OSHA’s Region I conducted training on the 

NEP in its Area Offices early this year.13

H.R. 5522, THE COMBUSTIBLE DUST EXPLOSION AND FIRE PREVENTION

ACT OF 2008

In the wake of the Imperial Sugar Company refinery accident, 

Chairman George Miller and Representative John Barrow introduced H.R. 5522. The bill would direct OSHA to immediately undertake a rulemaking regulating all forms of combustible dust, and 

to expedite the formulation of final regulations in what amounts to 

an unusually compressed timeframe. More specifically, H.R. 5522 

would require OSHA to: • Issue an interim final combustible dust standard within 90 

days that would include measures to minimize hazards associated with dust through improved housekeeping, engineering 

controls, building design, explosion protection and worker 

training; 

• Issue a final standard relating to combustible dust within 

eighteen months. The interim standard would remain in effect 

until the final standard is issued; and 

• Revise the Hazard Communication Standard to include 

combustible dust. 

COMMITTEE CONSIDERATION OF H.R. 5522

The Committee on Education and Labor held a legislative hearing on H.R. 5522 on March 12, 2008. At the hearing, several technical and policy concerns with the legislation were noted in testimony provided by the Republican witness and Assistant Secretary 

Foulke. 

The Committee held a markup of H.R. 5522 on Wednesday April 

9, 2008 during which an amendment in the Nature of a Substitute, 

offered by Representative Woolsey, was adopted by voice vote. Representative Joe Wilson offered an amendment in the Nature of a 

Substitute that was rejected by voice vote. The Committee then favorably reported H.R. 5522, as amended, by voice vote. 

REPUBLICAN VIEWS

H.R. 5522 was introduced in direct response to the accident at 

the Imperial Sugar Company refinery in Port Wentworth, Georgia; 

the bill’s sponsors have made that abundantly clear. It seems ludicrous, therefore, that Congress would not wait for the findings of 


bajohnson on PROD1PC77 with REPORTS
31 

OSHA’s investigation prior to taking legislative action. Committee 

Republicans believe that Congress, at a minimum, should allow for 

OSHA to complete its investigation of the accident before enacting 

legislation, taking into consideration all of the variables related to 

the accident. This view is embodied in the substitute amendment 

offered during the Committee’s consideration of the bill by Representative Joe Wilson. Unfortunately, the Majority defeated Representative Wilson’s common-sense amendment and instead, insisted on proceeding with hastily-written legislation that would 

likely result in an ineffective and unenforceable regulation. 

OSHA’s response to the CSB report 

To support its calls for a combustible dust regulation, the Majority cites OSHA’s, so-called ‘‘failure’’ to implement the recommendations of the CSB’s report on combustible dust. In the report, the 

CSB recommended that OSHA: • Issue a standard designed to prevent combustible dust 

fires and explosions in general industry; • Revise the Hazard Communication Standard; • Communicate to the United Nations Economic Commission 

for Europe (UNECE) the need to amend the Globally Harmonized System (GHS); • Provide training to inspectors through the OSHA Training 

Institute (OTI) on recognizing and preventing combustible dust 

explosions; • Conduct a National Special Emphasis Program (SEP) on 

combustible dust hazards in general industry; • Include in the SEP an outreach program focused on the information in the Safety and Health Information Bulletin 

(SHIB), ‘‘Combustible Dust in Industry: Preventing and Mitigating the Effects of Fire and Explosions.’’ As evidenced through testimony and letters submitted for the 

record for the Full Committee hearing on March 12, 2008, OSHA 

already has implemented the majority of the CSB recommendations in a variety of ways. 

In addition, OSHA continues to examine the CSB’s recommendation of the need for a combustible dust standard. To be clear, 

OSHA has not dismissed the idea of a regulation. Indeed, in his response to questions posed during the hearing, Assistant Secretary 

Foulke stated: 

Mr. Sarbanes, I would say, as I mentioned earlier in my 

testimony, we are—we have instituted this national emphasis program, and we are gathering information from 

that to determine whether or not, are the standards that 

we have in place now and sufficient to meet the hazards 

that we are dealing with. 

And we have not ruled out the possibility of doing rulemaking. So we are looking. And that is an option for us 

still. 

But we are just trying to collect the data through the national emphasis program, where we are look at all the—

as many sites as we can, and inspecting those sites to determine, do we have a—do our standards actually cover 

what we need to cover? Or is there some holes in the covVerDate Aug 31 2005 00:05 Apr 25, 2008 Jkt 069006 PO 00000 Frm 00031 Fmt 6604 Sfmt 6602 E:\HR\OC\HR601.XXX HR601

bajohnson on PROD1PC77 with REPORTS
32 

14Testimony of the Honorable Edwin G. Foulke, Jr., Committee on Education and Labor, 

‘‘H.R. 5522, the Combustible Dust Explosion and Fire Prevention Act of 2008,’’ Wednesday, 

March 12, 2008. 15See Appendix D, Investigation Report: Combustible Dust Hazard Study, Report No. 2006–

H–1 (November 2006). 

16 Ibid. 17 29 CFR 1910.272. 

erage that we need to address, and would a comprehensive 

standard address that.14

It appears, therefore, that OSHA has not ruled out the possibility 

of promulgating a combustible dust regulation. As such, it is our 

view that if a regulation is warranted, the agency should be given 

a reasonable amount of time to craft a credible, effective, and enforceable rule. 

Another reason OSHA should not rush to write a combustible 

dust standard was, in fact, highlighted in the CSB report—that 

being the extent to which any rulemaking would affect a large 

number of highly diverse of industries.15 Given the inevitable impact on such a wide range of America’s industry, OSHA must have 

the opportunity to decide if creating a one-size-fits-all rule is the 

most effective approach to address this complex and important subject. 

H.R. 5522 creates a one-size-fits-all regulation 

As currently written, H.R. 5522 would require OSHA to create 

one set of regulations for a substance which has many different 

physical characteristics (See Table 1), explodes at different 

flashpoints, and is part of countless industrial processes. Committee Republicans strongly believe that H.R. 5522 fails to responsibly consider the wide variety of issues relating to the combustible 

dust hazard, before mandating a rulemaking. 

TABLE 1.—PARTICLE SIZE OF COMMON MATERIAL 16

Common materials Size (microns) 

Talcum powder, fine silt, red blood cells, cocoa ................................................................................. 5 to 10. 

Pollen, milled flour, course silt ............................................................................................................ 44 to 74. 

Table salt .............................................................................................................................................. 105 to 149. 

Coarse sand .......................................................................................................................................... 297 to 1000. 

Abbreviated rulemaking does not equal protective rulemaking 

Should it be determined that a combustible dust regulation is 

needed, Committee Republicans generally share the Majority’s view 

that the regulation be completed in a reasonable amount of time. 

However, previous rulemakings have shown that the expedience 

with which an agency promulgates a rule must be weighed with an 

eye to the rule’s ultimate effectiveness. For instance, OSHA worked 

on a regulation for hexavalent chromium for several years before 

a court finally ordered the regulation to be completed in three 

years. While the effectiveness of the hexavalent chromium regulation is generally recognized, the fact that it required several years 

to be completed underscores the care that must be given to the 

rulemaking process. The same point can be made with respect to 

the grain standard.17 Supporters of H.R. 5522 suggest that the 

grain standard implemented by OSHA had such a positive effect on 


bajohnson on PROD1PC77 with REPORTS
33 

18See Letter from Assistant Secretary Foulke, April 8, 2008. 

safety that it demonstrates the need for a broader combustible dust 

regulation. History might guide these supporters to acknowledge 

that it took seven years to promulgate this narrowly targeted 

standard. 

Moreover, the success of the grain standard should be credited, 

in large part, to a robust rulemaking process; one which included 

significant stakeholder input. Unfortunately, H.R. 5522 does not 

follow the rulemaking process for the grain standard; but, instead, 

eliminates valuable input from the interim final rule (IFR). This 

oversight becomes even more glaring considering the fact that a 

combustible dust regulation would likely reach more than sixty industries. Should not these industries have the opportunity to comment or otherwise participate in the rulemaking process? Unfortunately, the Majority’s answer to this important question would appear to be no. This fact is all the more troubling considering that 

industry must comply with an interim final rule within 120 days. 

Assistant Secretary Foulke highlighted this concern in a letter opposing the bill: 

Accordingly, we do not believe the deadlines in either 

version of your bill will allow for a clear, effective, and enforceable standard that is economically and technologically 

feasible for as many as 200,000 facilities that will likely be 

affected in widely different industries throughout the entire country. Moreover, the IFR deadline is particularly 

problematic given that it will go into force without the opportunity for input from employees, employee representatives, scientific experts, small businesses and the rest of 

the regulated community.18

H.R. 5522 could result in two conflicting standards 

The bill also creates the very real possibility that OSHA’s final 

combustible dust regulation will look dramatically different than 

the interim final rule. Such an outcome becomes all too likely when 

one considers the fact that the final rule must reflect stakeholder 

input, while the interim final rule will not. As noted above, such 

input is crucial to the rulemaking process, and its absence from the 

early part of the process all but guarantees that the final rule on 

combustible dust will be different than the interim rule. While this 

fact is troubling on its face, its practical implications are even more 

disturbing. Employers may very well be required to make costly 

changes to their facilities and manufacturing processes in order to 

comply with the interim final regulation, only to be forced to make 

more modifications when OSHA issues its final rule eighteen 

months after enactment of the bill. Forcing such inconsistent regulation upon businesses and their employees simply defies credulity, 

even for the Democrat Members of this Committee. 

Use of National Fire Protection Association Standards is problematic 

Finally, but no less important, we are concerned by the bill’s retention of provisions relating to the National Fire Protection Association’s (NFPA) Standards. Our concerns were illuminated by the 


bajohnson on PROD1PC77 with REPORTS
34 

testimony David Sarvadi presented at the Committee’s hearing on 

the bill, during which he stated: 

Some will suggest that OSHA should simply adopt the 

voluntary standards that exist. To the extent that the 

standards reflect actual consensus about a particular topic, 

those sections that are mandatory can be useful in preparing regulatory provisions. 

Nevertheless, they need to be reviewed in an open process by OSHA because they are not always free of bias and 

may not represent true consensus among affected parties. 

I previously testified in 2006 at a subcommittee hearing on 

this issue. Congress assumed that consensus standards 

were the process of an open and transparent process. 

When they are, the standards do represent the best practices of the affected parties. But when the standards are 

contentious, it is more often the case that one or another 

group has managed to impose its will, with the result that 

the process in which the standard was adopted is not the 

equivalent of the mandatory notice and comment preceding that is typically required for government standards. 

Following normal rulemaking procedures is important 

from another perspective. To the extent that people feel 

they have been fairly heard, and the decision is made on 

the basis of objective technical criteria, they are more likely to accept it. We need such acceptance because we need 

voluntary compliance with these requirements to ensure 

true safety in the workplace. It will do no good to impose 

standards that in the end lead to more disputes and contention because, again, it will distract from the principal 

objective. Thus, we believe that it is imperative to recognize that a process longer than 90 days will be needed for 

OSHA to even adopt an interim standard. The process is 

inherently longer the more complicated the issue. Our experience of late is replete with unintended consequences of 

well-meaning but misguided action, particularly on the 

part of government. Short-circuiting the process by mandating changes within such short time frames will lead to 

more unintended consequences. 

An example will help. Suppose such a standard is adopted, and that it is determined that one of the NFPA standards should become mandatory. Normally, standards are 

forward-looking, and one critical aspect that is fleshed out 

in the rulemaking process is what to do about existing installations. Should they be upgraded? How long will employers be allowed to bring facilities into compliance? 

Should existing designs be grandfathered? How far back 

should such a grandfather period go? I would suggest that 

these questions need to be answered before a comprehensive standard is imposed on a broad and ambiguous group 

of employers and employees. 

It is simply wrong to suggest that OSHA can reasonably 

adopt the NFPA standards within 90 days. The NFPA 

standard 654, for example, is complex, on the one hand 

containing detailed technical specifications for the performVerDate Aug 31 2005 00:05 Apr 25, 2008 Jkt 069006 PO 00000 Frm 00034 Fmt 6604 Sfmt 6602 E:\HR\OC\HR601.XXX HR601

bajohnson on PROD1PC77 with REPORTS
35 

19See Testimony of David Sarvadi, Committee on Education and Labor, ‘‘H.R. 5522, the Combustible Dust Explosion and Fire Prevention Act of 2008,’’ Wednesday, March 12, 2008. 

ance of critical process equipment and components, and on 

the other hand, including programmatic requirements such 

as those contemplated in the proposed legislation. Adopting this kind of standard without the normal array of feasibility and other analyses through an accelerated process 

is a recipe for difficulty if not disaster. 

The complexity of the NFPA standards also suggests 

that having standards adopted through the legislative 

process is not a good idea. NFPA standards, including 

NFPA 654, are staffed with experts with many years of experience, most of whom are engineers. Engineers are 

trained in assessing the competing demands that are inherent in any design process, making decisions and tradeoffs that are informed by engineering judgment to achieve 

what are hopefully optimum results. The expedited standard adoption process contemplated by the bill would deprive interested and affected parties the opportunity to be 

heard, and would result in the imposition of a standard 

likely to be less effective.19

The complexity of these standards further demonstrates why the 

bill’s one-size-fits-all regulatory approach may be inappropriate 

with regard to combustible dust. 

AMENDMENTS OFFERED IN COMMITTEE

Woolsey amendment in the nature of a substitute 

Representative Woolsey’s amendment in the nature of a substitute would direct OSHA to issue an interim final Combustible 

Dust standard within 90 days, but jettisons all regulatory procedures related to the interim rule. Further, the amendment directs 

the Secretary of Labor to issue a final standard relating to combustible dust within eighteen months of enactment, but in this case, 

complying with all required rulemaking procedures. Finally, the 

bill requires the Secretary to revise the Hazard Communication 

Standard to include combustible dusts. The Woolsey amendment 

was adopted without objection. 

Wilson amendment in the nature of a substitute 

During the Full Committee’s markup of the bill, Representative 

Joe Wilson offered an amendment in the nature of a substitute. 

Representative Wilson’s common-sense amendment required the 

Secretary of Labor to determine if a combustible dust regulation 

was necessary, based on the conclusions of the Imperial Sugar 

Company investigation and data gathered from the combustible 

dust NEP. If the Secretary determined that a regulation is necessary, then the agency is to proceed with a rulemaking as outlined 

in the OSH Act. This rulemaking process must be completed within 

36 months. If a regulation is deemed unnecessary, the Secretary 

must report to Congress as to why it is not. The Wilson amendment failed on a voice vote. 


bajohnson on PROD1PC77 with REPORTS
36 

H.R. 5522, as amended, was favorably reported by the Full Committee to the House by voice vote. 

CONCLUSION

As noted previously in these views, the Republican Members of 

the Committee are deeply committed to protecting the health and 

safety of American workers. This commitment guides our views 

with respect to issues surrounding combustible dust, and the question of whether the Occupational Safety and Health Administration 

should be compelled to issue regulations in this area, as required 

by H.R. 5522. We, like our Majority colleagues, were deeply moved 

and saddened by the tragic accident that occurred in Port Wentworth, Georgia in February of this year. And we share our colleagues desire to take all possible actions to ensure that similar accidents do not occur in the future. We must disagree, however, with 

the legislative manner in which the Majority would take those actions. Quite simply, we cannot be sure that H.R. 5522, as currently 

written, will have the results hoped for by its sponsors, however 

well-intended their actions may be. Moreover, we are concerned 

with the bill’s unreasonably compressed timeframes and disregard 

for statutorily-required rulemaking procedures. OSHA must have 

the opportunity to complete its investigation of the Port Wentworth 

accident; and, to conclusively determine what, if any, regulatory 

changes are needed. To do otherwise, we fear, will result in a regulation that, at the end of the day, is both ineffective and unenforceable. That would be the least desirable result possible; as such a 

regulation would do little toward achieving our shared goal of protecting American workers. It is this likely result, therefore, that 

compels us, respectfully, to reject H.R. 5522 in its current form. 

HOWARD P. MCKEON. 

PETE HOEKSTRA. 

JUDY BIGGERT. 

TODD R. PLATTS. 

JOE WILSON. 

JOHN KLINE. 

CATHY MCMORRIS RODGERS. 

KENNY MARCHANT. 

THOMAS PRICE. 

VIRGINIA FOXX. 

ROB BISHOP. 

DAVID DAVIS. 

TIM WALBERG. 

Æ 


bajohnson on PROD1PC77 with REPORTS