Kleen Energy Hearing: OSHA Regulations Urgently Needed, None Currently in Place

"I was in the chemical industry for 35 years and I would have never thought of using high-pressure gas to purge a line," said John Bresland after a hearing in City Hall Monday.

Bresland is a member of the U.S. Chemical Safety and Hazard Investigation Board, and it's chair until two days ago.

"It's puzzling for me why you would spend $1 billion to build a plant and then three weeks before it's completed use a process that would blow it up," he added.

Bresland's puzzlement was a reinforcement of his testimony before a Congressional sub-committee which met in Middletown's City Hall Monday.   The Workforce Protections Subcommittee of the Committee on Education and Labor met in council chambers and was chaired by Representative Joe Courtney, who invited Connecticut representatives Rosa Delauro, Chris Murphy and  John Larson to join him.  The subcommittee convened a panel which included Breslan, Mayor Sebastian Giuliano, Jodi Thomas - the wife of pipefitter Ron Crabb who was killed in the explosion, Alan Nevas - the chair of the Governor's Kleen Energy Systems and Explosion Origin and Cause Panel, and Professor Glenn Corbet of John Jay College, a member of the National Fire Protection Association (NFPA) and South District Fire Chief Edward Badamo.

No Regulations, No Oversight

Experts testifying before the committee made it clear, again and again, that there were no regulation on the books that prohibited Kleen Energy or its subcontractors from using high-pressure natural gas to purge gas lines.

"The gas blow procedure is inherently unsafe," Courtney said, in convening the subcommittee.  "There is no law, standard, regulation or code to regulate gas blows."

"I wasn't aware that there was such a procedure," Bresland testified.  "And I was quite shocked to find there was such a procedure."

Bresland later explained that electric generating plants using gas turbines were a relatively new technology, and that there was a "steep learning curve" for regulating agencies.  His replacement as chair of the , Rafael Moure-Eraso, agreed.

"It's a new development," Moure-Eraso said before the meeting.  "A new way of using natural gas to produce electricity."

"The deadly incidents in Connecticut and North Carolina (Conagra Slim Jim plant explosion) were preventable," Bresland said indicating that the 400 cubic feet of gas blown through the pipe at 600 psi (pounds per square inch), was excessive.

"It's enough gas to fuel a typical house every day for the next 25 years," Bresland said.

Bresland indicated that the U.S. Chemical Safety and Hazard Investigation Board would meet Monday evening at St. Clements Castle in Portland to consider its recommendations for new, strict regulations, prohibiting gas blows to be enforced by OSHA.

In addition, Kleen Energy was offered an incentive bonus to finish the job ahead of deadline, an incentive that at least one member of the panel was a disincentive for safe practices.

Regulations Blocked By Industry Representatives

Professor Glenn Corbett, a member of NFPA, had some discouraging words to say about the method by which regulations are adopted by this national organization.

"There's a large gap in national model codes," Corbett said.  He explained that the NFPA has considered an emergency amendment to "scoping exemptions" for power plants, which allowed electric generating plants to operate outside codes adopted for other industries.  When the NFPA had the opportunity to pass such an amendment, it failed.

"I have no confidence that the NFPA will adopt codes," Corbett said, explaining that the organization had ignored more than one "wait-a-minute moments."

Corbett explained that codes are written by "technical committees" which should be made up of enforcement officials, topic experts, insurance industry representatives, code experts and industry representatives, but that often the technical committees are heavily weighted with industry representatives who block meaningful regulations.

"There's often an imbalance with one kind of entity," Corbett said.  "Committees are dominated by industry representatives.  This regulation is the 800 pound gorilla sitting in the room with the NFPA and the ICC (International Code Council).

As an example, he cited an attempt to have stairwell widths widened in the aftermath of 9/11 from 44 inches (the width of a soldier circa WWII) to a more modern standard of 56 inches, only to have the regulation rejected by building industry representatives.

Who Will Regulate, And When?

Another consensus among the panel was the idea that changes in federal regulation with OSHA, or through Congressional action would take far too long to have the immediate and urgent impact needed for the suggested regulations.

Nevis, offering a laundry list of common sense regulations including training, licensing, tighter regulations, and oversight by an alphabet soup of agencies (DEP, DPUC, OSHA, Department of Labor, Department of Consumer Protection, state and local fire marshals), said that the only way to make an immediate impact is to suggest that the Siting Council insist on the improved regulations when approving construction of generating plants.

Nevis indicated that Kleen Energy must return to the Siting Council before November 30 to renew its permits, and it's a perfect time to insist that the new regulations be adopted before approval is granted.

Derek Phelps, chairman of the Siting Council passed Nevis a note which indicated that Kleen Energy was willing to adhere to new regulations to receive the renewal of its permit.

But Who's In Charge Now?

The answer is Kleen Energy, despite the panel's and the congressional committee's negative assessment of self-enforcement.

Before the meeting I asked Mayor Sebastian Giuliano if construction was underway at the Kleen Energy site, and if so, who was in charge of making sure that safety and construction standards are being met.

"As far as I know, they're already pouring footings," Giuliano said.  "People have told me that the place is clean as a whistle, and that 600 people are up there everyday."

I asked again who was in charge of assuring that safety and engineering standards are being met.

"I don't know," the mayor said.

I posed the same question to Siting Council chair Derek Phelps, who said that the Siting Council was in charge "within the scope of their responsibilities" which include "compliance with site design" but that there wasn't an easy answer to the question of who is responsible for enforcing other issues.

Professor Corbett indicated that in the absence of regulations, that construction and safety at the plant now is the responsibility of the power plant company and the contractors.

"But I've told the local agencies to use the power of the fundamental regulations," Corbett said.  "The language in the fire code is basic, but it gives the fire marshal power to oversee anything that is inherently unsafe.  And certainly gas purging has been shown to be dangerous.  Use the language."

South District Fire Chief Badamo confirmed that current that the South District Fire Marshall is in charg of "code enforcement and reviews."  But he indicated that they were not conducting oversight that was any different than what they performed previously.

"The difference is that they (Kleen Energy) is not following the same procedures as before," Badamo said.

Badamo did indicate that registration procedures for workers on the site have improved.


A Final Note About Protocol

Former Common Council member Earle Roberts was taken aback when at meetings' end, he realized that the public would not have an opportunity to comment at this Congressional "public" hearing.

"I guess we aren't going to get the opportunity to speak," he said, pocketing the list of questions he had compiled on the reverse side of a business card.

The two-hour meeting began with forty-minutes of speeches by the Congressional committee, each echoing nearly exactly what the colleague who preceded them had said (need for regulation, condolences for the injured and killed, surprise at lack of code).   What followed was a set of five-minute presentations by panel members (30 minutes), and then two rounds of questions (45 minutes) by the Congressional members.

Congressman Larson left the gathering before the panel began their testimony, but not before he made a speech of his own.

I collared Larson in the upstairs corridor of city hall and asked him to ask a question I thought was very important:  with construction going on today, who is in charge of oversight, and how can the residents of Middletown be confident that the safest procedures are being followed.

Larson warned me that he would not be asking questions, but that he would make sure Congressman Courtney did ask the question.

For the record, a similar question was asked by Congressman Murphy, though it was not as pointed.

"With construction going on right now, are there lessons learned?" Murphy asked.

Courtney did not pose the question.

The chief attorney for Kleen Energy attended the hearing, but neither CEO William Corvo, nor chief local investor Phil Armetta were present.