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NIOSH mysteriously backs off support for ‘safety case’ approach

By Ken Ward Jr., Staff writer

A federal agency charged with studying and promoting worker safety and health has with little explanation backed off its public support for two proposals that would require companies to show what they have done to reduce workplace hazards to the lowest practical levels, according to new government records.

The National Institute for Occupational Safety and Health, or NIOSH, reversed course with a new letter submitted to the U.S. Occupational Safety and Health Administration more than two months after the close of OSHA’s comment period on the issue.

NIOSH submitted its letter June 6, the same day that the Obama administration made public a multi-agency report that outlines the administration’s response to a string of major industrial accidents across the country.

In its new letter, NIOSH asked OSHA to remove from the public record comments that NIOSH had submitted about two related concepts: The “safety case” approach that requires written reports explaining how workplace risks have been reduced and “inherently safer designs” that forces companies to use less dangerous materials and production processes.

Paul Schulte, director of NIOSH’s Education and Information Division, had, in a March 6 letter to OSHA, praised the safety case as “a proactive, performance-based construct,” in which licenses to operate facilities could be designed “for hazardous chemical plants to increase safety to workers and surrounding communities.” Schulte also described inherently safer designs as fitting in well with NIOSH efforts to encourage the design of industrial activities “to prevent and control occupational injuries, illnesses and fatalities” by minimizing hazards and risks.

Schulte submitted his letter as part of a public comment period OSHA held from December 2013 to March 31, 2014, to seek information about how the agency might rewrite its “process safety management” regulations, which are key rules aimed at preventing accidents. The comment period was held as a result of President Obama’s call last August for improvements in the nation’s chemical safety efforts after an April 2013 explosion and fire at a fertilizer plant in West, Texas, killed 15 people, injured hundreds of people and flattened part of the town.

The multi-agency report to the White House, written by OSHA, the U.S. Environmental Protection Agency and the Department of Homeland Security, was also part of Obama’s effort, outlined in an executive order.

In his second letter to OSHA, Schulte asked OSHA to “substitute new comments” that deleted the discussion of the safety case and inherently safer design. Schulte said that NIOSH was withdrawing those comments “based on a re-evaluation of the scientific evidentiary foundation” for the original comments.

On Friday, Schulte said that NIOSH Director Dr. John Howard “was at a number of scientific conferences where he heard from a variety of stakeholders that they had concerns about what we had stated in our March comments.”

“The director called for a re-review of what we had said,” Schulte said. “Upon looking at it further, while there are advocates for those positions, we didn’t see that there was actually a scientific basis that attested they were more effective than what was currently being done. We didn’t want to be in a position of recommending something to OSHA that didn’t have a good evidentiary basis.”

NIOSH officials refused to identify exactly who Howard spoke with about the NIOSH comments before ordering the re-examination of the issue. Through a spokesman, Howard declined an interview request.

The biggest advocate for U.S. adoption of the safety case approach to industrial incidents has been the U.S. Chemical Safety Board. Board Chairman Rafael Moure-Eraso has said the nation “is facing an industrial chemical safety crisis” that the safety case approach could help remedy.

Moure-Eraso and CSB investigators recommend replacing the existing patchwork of regulations with a more rigorous safety case system that’s been adopted in the United Kingdom, Norway and Australia. As explained in a December CSB report, this system requires companies to demonstrate to regulators — through a written “safety case report” — how major hazards are to be controlled and risks reduced to “as low as reasonably practicable.” The goal of the program is to shift responsibility for continued reductions in major accident risks from regulators to the companies.

In its report — made public the day that NIOSH changed its position on the issue — the multi-agency Obama administration panel dismissed the CSB’s proposal, saying that “nearly all comments received regarding the adoption of the safety case regulatory model were negative.”

Reach Ken Ward Jr. at kward@wvgazette.com or 304-348-1702.


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