Employee safety rules inadequate, report says

The findings in a federal report on the fireworks explosion that killed five men at a Waikele storage bunker in April 2011 raise concerns not just about a lack of federal rules and guidelines about the disposal of unused fireworks, but about inadequate oversight of employee safety procedures taken by large-scale contractors in general.

The April 8, 2011, explosion killed five employees of Donaldson Enterprises who had spent the morning disassembling fireworks for disposal at a separate location.

Dan Tillema, western region investigations team leader for the U.S. Chemical Safety and Hazard Investigation Board, said much of the staff work focused on the hazardous waste disposal contract awarded to Virginia-based VSE Corp. for the storage, auction or disposal of large amounts of government-seized property from counterfeit goods to livestock, as well as unexploded illegal fireworks.

VSE subcontracted Donaldson, which had already been selected to store the fireworks, to dispose of them as well. But despite Donaldson’s background in disposing of military ordnance, it had no experience with fireworks disposal, board investigators said.

"There was just a lack of safety provisions in the contracting process," Tillema said.

Karla Walter, a policy analyst with the progressive educational and advocacy group institute Center for American Progress, said her group supports the board’s move to shore up laws involving federal contractor responsibility for the safety of workers.

"We think that this is a very important but, honestly, modest first step in improving contractor responsibility," Walter said at the hearing, shown via the Internet. "The scope of this problem definitely extends beyond the fireworks industry, beyond chemical safety to the contracting industry as a whole. Currently, every year, the federal government spends more than $500 billion on contracting everything out from janitorial services to the design and manufacturing of defense systems."

More than 1 in 5 American workers are employed by a company that has a contract with the federal government, she said.

"Yet for far too long and far too often, we see that the government has been awarding contracts to low-road companies that egregiously violate the law, damage the environment and treat their workforce poorly."

Among the report’s recommendations is that the Federal Acquisition Regulatory Council and the Treasury Department institute rigorous safety provisions throughout the federal contracting process dealing with the storage, handling and disposal of explosive hazardous materials, including fireworks.

On the issue of fireworks specifically, the board investigation concluded that there is a lack of regulations or industry standards for fireworks disposal and that there are no federal, state or local regulations or industry standards establishing safety requirements, providing guidance on the right way to dispose of fireworks and dealing with the hazards associated with disassembling fireworks. Nor are there standards governing the accumulation of explosive fireworks components, the study said.

The study also raised issues with other government agencies, among them the state Department of Health.

Donaldson obtained a 90-day emergency hazardous waste disposal permit to destroy the fireworks, and while the Health Department requested Donaldson’s fireworks disposal plan before awarding the permit, the chemical board investigators said they found "no evidence that DOH personnel conducted additional analysis to better understand (Donaldson’s) disposal plan."

The report said board investigators were told that Health Department officials were more focused on environmental protection than safety.

Further, "DOH personnel lacked the requisite background to analyze (Donaldson’s) proposed disposal methodology, experience and qualifications when issuing this permit."

Ultimately, Donaldson had an expired permit at the time of the explosion, and its failure to obtain an extension led the company to accumulate large quantities in the cave, creating the mass explosion hazard, the study said.

The report called on the federal government to work with the states to develop and require more stringent reviews for fireworks disposal permits.

State Deputy Health Director Gary Gill said while he has not reviewed the report nor discussed it with his hazardous waste staff, "the Hazardous Waste Program has regulated the disposal of fireworks for many years under our existing law and rules."

However, the department is reviewing its regulations as well as the recommendations made by the report, Gill said.

The chemical safety panel is strictly advisory and has no regulatory authority. However, federal agencies are required to reply to the report within 180 days, either accepting the recommendations or explaining why it cannot. The agency also advocates, tracks and monitors its recommendations, Managing Director Daniel Horowitz said.

About 72 percent of its recommendations in the last year were implemented, he said.

"We do get these adopted, and we do see that there are concrete safety changes."

The families of the five victims have sued VSE and other companies, although Donaldson is not named in the lawsuit because state workers’ compensation law bars employees from suing their employers for work-related injuries or wrongful death.

VSE, however, has filed a separate complaint trying to bring Donaldson into the lawsuit, arguing that its contract with Donaldson indemnifies VSE from liability.

Ralph J. O’Neill, a VSE attorney, said he and his clients are still reviewing the report.

"Certainly the emphasis on developing applicable regulations and industry standards is definitely sensible, particularly given the tragic outcome here," he said.

O’Neill added that he thought it significant that the report pointed out that the men were working outside on the day of the of explosion and moved the materials just inside the cave only when it began raining heavily. At no point, he said, did the report indicate active work was actually being done in the cave, he said.

The report said a metal hand truck used to move boxes of black powder, aerial shells and partially disassembled tubes could have sparked the fire, or it could have been a rolling desk chair moved into the bunker when it began raining or static electricity from plastic trash bags

Steven Hisaka, an attorney for one of the victim’s families, said the report showed that Donaldson revised its disposal methods several times, allowing VSE the opportunity to evaluate the situation.

"There were at least two opportunities for VSE and the people there to review the methods that were being changed," Hisaka said. "That, in fact, never occurred." 

Killed in the April 8, 2011, explosion were Bryan Dean Cabalce, Robert Freeman, Justin Joseph Keli‘i, Robert Leahey and Neil Sprankle. A sixth man, described as the project supervisor, was making a phone call outside the cave and survived the explosion.