Interested parties have until January 19, 2010, to offer written comments on OSHA's combustible dust Advance Notice of Proposed Rulemaking.
Combustible dusts are solids ground into fine particles that can present a fire or explosion hazard when suspended in air. Among the many materials that can become combustible dust are wood, plastics, rubber, metals, coal, grain, feed, soap, sugar and fertilizer. Over the past 30 years, there have been almost 300 known dust fires and explosions in U.S. industrial facilities, which have resulted in hundreds of serious injuries and worker fatalities.
Until now, the Occupational Safety and Health Administration (OSHA) has regulated the hazards of combustible dust through an assortment of general industry standards (for example, OSHA's general industry housekeeping and electrical standards) as well as the agency's General Duty Clause, which requires employers to protect their employees against serious "recognized" hazards. However, in an Advance Notice of Proposed Rulemaking (ANPR) published in the Federal Register on October 21, 2009, OSHA announced its intent to develop a comprehensive safety standard to address the hazards of combustible dust. The full text of OSHA's combustible dust ANPR can be found on the agency's website.
Combustible dust explosions are not a new phenomenon, and OSHA has been regulating industries susceptible to the hazards of combustible dust for decades. So what is driving OSHA's decision to promulgate a new regulation for combustible dust? Why now?
There are essentially three reasons why OSHA is now engaging in a rulemaking for a new comprehensive combustible dust standard:
Following the 2008 catastrophic dust explosion at Imperial Sugar's plant in Port Wentworth, Georgia, which took the lives of 14 workers, OSHA has been under pressure from the public, legislators and the U.S. Chemical Safety and Hazard Investigation Board to develop a combustible dust standard.
OSHA's enforcement inspections under its ongoing combustible dust National Emphasis Program have resulted in a high number of alleged violations cited under the General Duty Clause, as opposed to one of OSHA's specific safety standards. This led OSHA to conclude that it needed to adopt a standard designed to regulate the hazards of combustible dust.
OSHA under President George W. Bush emphasized voluntary compliance programs, whereas President Obama's OSHA has already made it clear that rulemaking is a top priority.
Imperial Sugar and the U.S. Chemical Safety and Hazard Investigation Board
In 2006, after several high-profile industrial incidents involving combustible dust, the U.S. Chemical Safety and Hazard Investigation Board (CSB) conducted a study of combustible dust hazards and reported that over the previous 25 years, there had been more than 275 dust fires and explosions in U.S. industrial facilities, resulting in almost 1,000 injuries or fatalities. The CSB concluded that many industry and safety professionals lacked awareness of combustible dust hazards, National Fire Protection Association (NFPA) and other dust-related national consensus standards were not being followed by many employers, state and local fire codes were not effectively addressing the hazards of combustible dust, and OSHA's focus had been on enforcement activities triggered by combustible dust incidents rather than on developing a standard to regulate the hazards of combustible dust.
On February 7, 2008, a catastrophic combustible dust explosion struck the Imperial Sugar plant in Port Wentworth, Georgia, resulting in the deaths of 14 workers and injuries to three dozen others. OSHA and the CSB both investigated the incident. OSHA cited Imperial Sugar for more than 200 safety violations and proposed the third largest penalty in the agency's history, nearly $9 million. The CSB's final report regarding the Imperial Sugar explosion was released on September 24, 2009, in which the CSB formally recommended that OSHA "proceed expeditiously . . . to conduct rulemaking, to promulgate a comprehensive standard to reduce or eliminate hazards from fire and explosion from combustible powders and dust."
In addition to the CSB's formal recommendation, OSHA has felt pressure to develop a combustible dust standard from the public, industry and labor organizations, and legislators. For example, U.S. Senators Johnny Isakson and Saxby Chambliss, the two senators from Georgia, home of Imperial Sugar's plant destroyed during the February 2008 explosion, publicly urged OSHA to act on the issue of combustible dust and to "embrace the findings of the Chemical Safety Board, including the recommendation that OSHA establish mandatory standards modeled after the National Fire Protection Association guidelines."
OSHA's Combustible Dust National Emphasis Program
In October 2007, OSHA initiated a National Emphasis Program (NEP) to increase OSHA's nationwide enforcement activities within industries that generate or handle combustible dust. The industries targeted by OSHA under the NEP have included, among others, wood, food, metal, rubber, paper and plastic products, pharmaceuticals, furniture, durable goods and textile mills.
Two years into the NEP, OSHA gave an account of the status of its enforcement efforts under the NEP by reporting that each of its 70 Area Offices has conducted at least four combustible dust NEP inspections each year since the start of the NEP, with more than 1,000 inspections covering workplaces in 64 different industries and resulting in the issuance of nearly 5,000 citation items (the vast majority of which were characterized at least as serious). The most noteworthy statistic arising out of the combustible dust NEP, however, has been the unusually high percentage of citations issued under the General Duty Clause. In particular, OSHA lacked a specific standard under which to cite a significant portion of the combustible dust hazards it found. As a result, roughly one in every four citation items issued during the NEP has been issued under the General Duty Clause (a rate of approximately 25 percent), as compared to a rate of less than 4 percent from all other OSHA inspections.
Accordingly, OSHA concluded from its combustible dust NEP, and its need to rely so heavily on the General Duty Clause in the enforcement actions arising out of the NEP, that OSHA's existing safety standards do not provide a sufficiently comprehensive set of requirements to adequately address the hazards of combustible dust.
The list below includes five of the most common combustible dust hazards cited under the General Duty Clause during the NEP, each of which was derived from NFPA 654 (Standard for the Prevention of Fire and Dust Explosions from the Manufacturing, Processing, and Handling of Combustible Particulate Solids, 2006):
Elevated, horizontal surfaces such as beams, ledges and screw conveyors were not minimized to prevent accumulation of dust.
Equipment such as grinders, shakers, mixers and ductwork were not maintained to minimize escape of dust into surrounding work areas.
Compressed air was periodically used to clean combustible dust accumulations in the presence of ignition sources.
All components of dust collection systems were not constructed of noncombustible materials.
Dust collection systems were located inside buildings without adequate explosion protection.
Employers should expect that any combustible dust standard promulgated by OSHA will be designed to address hazards like these, as well as other hazards included in the various NFPA combustible dust-related consensus standards.
OSHA Rulemaking – A Renewed Effort
For the eight years of the Bush administration, OSHA emphasized innovative voluntary compliance programs and safety guidelines more than traditional command-and-control rulemaking. Indeed, OSHA under the Bush administration promulgated fewer new safety standards than it did during the Clinton, George H.W. Bush and Reagan administrations.
The Obama administration, by contrast, clearly prefers mandatory regulations. Upon taking the reins of the U.S. Department of Labor, President Obama's Secretary of Labor, Hilda Solis, announced that "OSHA is reinvigorating the regulatory process." The Obama administration has stated that rulemaking will be a priority of OSHA and that all industries should expect a significant increase in rulemaking activity, such as development of the Global Harmonization standard for hazard communication, the revised walking/working surfaces standard, another attempt at an ergonomics standard, an effort to revise many of the current chemical permissible exposure limits, a safety and health programs standard, and the combustible dust standard introduced by OSHA in its recent ANPR.
In a June 2009 speech at the American Society of Safety Engineers' annual conference, Secretary Solis announced that "there is a new sheriff in town . . . . Make no mistake about it, the Department of Labor is back in the enforcement business. We are serious, very serious." For a detailed analysis of OSHA's new enforcement philosophy, see McDermott's On the Subject " There Is a New Sheriff in Town – Get Ready for a More Aggressive OSHA."
What's Next for the Combustible Dust Rulemaking?
As part of the rulemaking process, in addition to asking for written comments on the ANPR, OSHA will conduct several stakeholder meetings to gather data and information about the industries that would be affected by a combustible dust standard, the economic effects of such a mandatory regulation and the possible forms that the regulation may take, such as explicitly requiring compliance with existing NFPA national consensus standards, referencing NFPA standards as providing acceptable compliance options or developing a completely new standard altogether. The first round of these stakeholder meetings is set for December 14, 2009, when OSHA will host two three-hour meetings in Washington, D.C. Additional meetings are expected to be held in early 2010.
At these meetings, industry representatives, safety professionals and the general public will have the opportunity to comment on OSHA's combustible dust ANPR and to generally help OSHA in shaping the form and content of the new standard. To facilitate this gathering of data and information, and to guide the public's comments, OSHA included in the ANPR a list of 69 questions arranged within a series of topic headings, including among them Definition of Combustible Dust; Hazard Recognition; Hazard Assessment; Hazard Communication and Training; Consensus, Industry and Insurance Standards; State and Local Codes; Engineering Controls; Administrative Controls; Investigation of Incidents; Economic Impacts and Benefits; and Regulatory Approach.
Interested parties have until January 19, 2010, to offer written comments on OSHA's combustible dust ANPR. Comments can be submitted electronically here. If your company operates one of the approximately one million workplaces or employs several among the approximately 22 million workers in industries that generate or handle combustible dust, now is the time to actively participate in the process that will determine the form and content of this important new standard.
The McDermott Difference
With extensive experience regarding OSHA rulemaking and in responding to workplace accidents, including combustible dust explosions, McDermott's OSHA, MSHA & Catastrophe Response Group can assist your company or industry association in making sure your concerns are addressed during this important rulemaking process. Click here for more information on our OSHA practice.
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