• Combustible Dust Update: OSHA's Preliminary Rulemaking on Dust is Underway
  • November 20, 2009 | Authors: Lawrence P. Halprin; David G. Sarvadi
  • Law Firm: Keller and Heckman LLP - Washington Office
  • On October 21, 2009 OSHA announced the formal initiation of a rulemaking that, barring some unforeseen turn of events, will inevitably lead to the adoption of an OSHA combustible dust standard.[1] Depending on its scope and what requirements are made retroactive, the OSHA standard could impose billions of dollars in additional compliance costs on U.S. industry.

    The first formal opportunity for stakeholders to participate in this process is by filing comments on the issues raised by OSHA's Advanced Notice of Proposed Rulemaking.[2] The comment deadline is January 19, 2010. The second formal opportunity for stakeholders to participate in this process will by attending and speaking at the informal stakeholder meetings scheduled for December 14, 2009, with additional meetings likely in other locations "outside the beltway."[3] The third formal opportunity is likely to be through what would appear to us to be the inevitable Small Business Review of a draft OSHA standard, especially if every location (e.g., factories, woodworking shops, restaurants, schools) that simply generates and vacuums up a pile of combustible dust (e.g., flour, starch, sugar, wood dust) will be required to comply with this standard, including purchasing a specialized and very expensive vacuum cleaner rated for Class II hazardous locations.

    The fourth and final formal opportunity for stakeholders to participate in this process (apart from any possible court challenges and follow-on rulemaking) is expected to be the formal rulemaking, which typically involves an initial comment period, informal public hearings, and periods for post-hearing comments and post-hearing briefs. We strongly advise against waiting until the formal rulemaking to participate. By then, after all of the preliminary activities, OSHA is likely to have a fairly firm idea as to how it intends to approach this issue.

    A facility handling combustible dust probably need not be overly concerned with this initiative IF it:

    (1) Fully conforms to every one of the rigid, specification-based requirements of the most current version of all applicable NFPA standards (rather than the significantly more flexible performance-based provisions of those standards), without taking advantage of any grandfathering provisions for pre-existing installations; and

    (2) follows a rigorous, documented and audited process, equivalent to one applicable to installations covered by OSHA's Process Safety Management Standard, 29 CFR 1910.119, for ensuring that the design, installation, operation, maintenance and modification of any equipment or process handling combustible dust or material that could generate combustible dust conforms to those NFPA standards.

    We are not aware of any such facility in the United States. While there may be a few, it is also important to note that the primary NFPA combustible dust standard, NFPA 654[4], is currently in the final stages of a major rewrite and is likely to include even more demanding control measures.

    At the present time, the membership of some of the NFPA committees developing combustible dust standards is heavily weighted with fire safety and explosion consultants, equipment manufacturers, and insurance carriers whose interests are not necessarily aligned with the users of the standards. Actual industrial users of the NFPA standards are substantially under-represented on many of the NFPA committees responsible for combustible dust standards, and are only beginning to realize the consequences of what can happen when OSHA largely abandons its rulemaking function and is supplanted by the standards developed by national consensus bodies lacking the critical protections provided by the Administrative Procedure Act and judicial review.

    On a per site basis, we believe OSHA's Process Safety Management Standard is the most costly and paper-intensive standard ever adopted by the agency. But the costs of implementing a comparable process for combustible dust would be just the beginning of the costs that could be imposed by a combustible dust standard. The NFPA standards contain layers of overlapping engineering and administrative controls (so that if the first and second belts fail, the suspenders should still hold the pants up) designed to prevent both the primary and the secondary explosion.

    We do not mean to suggest that the status quo is acceptable and should be maintained. However, it does seem appropriate to carefully examine how much harm has been caused by primary explosions and how much harm has been caused by secondary explosions (which could be prevented by good housekeeping) before deciding whether to require the retrofitting of engineering controls that could cost billions of dollars. To its credit, OSHA has asked that question in the ANPRM,[5] as well as what an appropriate phase-in period would be for any retroactive requirements. Stakeholders who fail to explicitly and effectively address these issues in their comments will have only themselves to blame if they remain silent and OSHA determines that their industry or X% of their industry is already in compliance with NFPA standards. OSHA's ability to rely on the "best available evidence rule" gives the agency enormous discretion to make a broad range of assumptions.

    As a matter of precedent, it is important to note that OSHA's Grain Handling Facilities Standard contains some grandfather provisions. For example, with one minor exception, the engineering control requirements governing dust collectors in that standard do not apply to dust collectors installed before the effective date of that standard.[6]

    The OSHA Grain Handling Facilities Standard established the accumulation of 1/8 inch of fugitive dust in certain priority areas (around bucket elevators, grinders and dryers) as the trigger for taking measures to remove that dust. The current NFPA standards are not limited to priority areas, which suggests any such trigger could apply to the sugar or flour in a small bakery or a school cafeteria restaurant, as well as a large industrial facility.

    According to OSHA, the 1/8 inch trigger in the grain standard was based on a findingĀ - reached after much study, debate and litigation -- that a lower trigger level was infeasible. OSHA should be required to make comparable feasibility findings for each industry covered by any final rule, and it should take into account the properties of the dust. The NFPA 654 Committee is currently re-examining the question of when an accumulation of fugitive dust should trigger clean-up measures. The variables affecting that determination make it extremely challenging to develop a generic rule in this area.

    OSHA has encouraged the submission of comments from every industry it identified as having at least one documented combustible dust incident since 1980. We recognize the basic and frequently stated principle that one death is one death too many. However, every incident does not cause harm to people (as opposed to property). Furthermore, the U.S. Supreme Court has made clear what politicians often decline to say: The OSH Act was not adopted to reduce workplace risk to zero, just as we have not reduced the risk to zero in any other aspect of our lives. We have not yet heard any discussion of the 1/1000 "significant risk level" although there are real world data for this type of hazard that, unlike many health hazards, do not require modeling and extrapolation from animal studies. The occurrence of one combustible dust incident in an entire industry of any significant size in a period of 30 years, even if it does result in human injury, does not appear to present the type of significant risk the OSH Act was designed to eliminate.

    Industries OSHA has identified include:

    (1) Virtually all of the food manufacturing sector, including food manufacturing, animal food manufacturing, breakfast cereal manufacturing, sugar and confectionary product manufacturing, beet sugar manufacturing, bakeries, beverage and tobacco product manufacturing, grain and oil seed milling, wet corn milling;

    (2) Textile and textile product mills;

    (3) Wood products manufacturing, including sawmills and reconstituted wood products manufacturing;

    (4) Paper manufacturing

    (5) Petroleum and coal products manufacturing

    (6) Chemical manufacturing, including basic inorganic chemical manufacturing;

    (7) Pharmaceutical and medicine manufacturing

    (8) Plastics and rubber manufacturing

    (9) Tire manufacturing

    (10) nonmetallic mineral product manufacturing

    (11) primary and fabricated metal manufacturing

    (12) machinery manufacturing

    (13) computer and electronic equipment manufacturing

    (14) transportation equipment manufacturing and support activities for transportation

    (15) furniture and related product manufacturing

    (16) warehousing and storage

    (17) publishing industries

    (18) merchant wholesalers

    (19) facilities support services

    (20) waste management and remediation services

    Clearly, the issues raised by this initiative raise difficult technical, economic, and policy issues, and there is a heavy human element of both legitimate concern and emotion. We strongly urge those industries identified by OSHA as well as others to submit comments, that, at a minimum, address what engineering controls should and should not be required (with NFPA 654[7] providing an important reference as to what is under consideration), which controls should be required on a prospective basis only, and what level of fugitive dust should trigger clean-up measures.

    OSHA has identified the following topics for discussion during the December stakeholders meetings:

    • Possible regulatory approaches.
    • Scope.
    • Organization of a prospective standard.
    • The role of consensus standards.
    • Economic impacts.

    Formal comments can be sent in written form to the OSHA Docket Office, Docket No. OSHA-2009-0023 (or Regulation Identifier Number (RIN) 1218-AC41), Technical Data Center, Room N-2625, U.S. Department of Labor, 200 Constitution Avenue, N.W., Washington, DC 20210. Electronic submissions should be sent to http://www.regulations.gov. Comments that are ten pages or less in length can also be faxed to the OSHA Docket Office at (202) 693-1648. The deadline for submissions is January 19, 2010.