HazCom Rule Can Address Combustible Dust, Court Says in Rejecting Industry Challenge

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Oct. 24 — A federal appeals court denied a petition Oct. 24 to vacate the Occupational Safety and Health Administration's Hazard Communication Standard as it applies to combustible dust.

The petitioners argued that the Hazard Communication Standard—a final rule—should be vacated because OSHA failed to give adequate notice that combustible dust would be included in the rule and that combustible dust should instead be addressed in a pending rulemaking on the subject. They also told a three-member panel of the U.S. Court of Appeals for the District of Columbia Circuit that the final rule was unconstitutionally vague because it failed to define “combustible dust.”

The petitioners, which include the National Oilseed Processors Association, the Corn Refiners Association, the National Grain and Feed Association and the American Feed Industry Association, argued that they hadn't received adequate notice from OSHA that combustible dust from grain would be among the items included in the Hazard Communication Standard.

It wasn't mentioned in the 2006 advance notice of proposed rulemaking, the petitioners argued. Since combustible dust had been regulated since 1987 by the grain handling standard, the petitioners said, they couldn't have anticipated that it would be addressed in this final rule.

The groups represent companies involved in grain handling as part of their agricultural and industrial operations, including Archer Daniels Midland Co., Cargill Inc., Southern States Cooperative Inc. and Perdue AgriBusiness LLC.

Government lawyers, in a brief filed June 5, argued that the grain handling groups know what combustible dust is—even absent a specific definition—for the purpose of complying with OSHA's grain handling standard and that the agency's proposed hazard communication standard explicitly discussed combustible dust, and stakeholders submitted comments both for and against that proposal.

History Supports OSHA

Writing for the panel, Judge Judith W. Rogers disagreed with the petitioners, noting that combustible dust was addressed in OSHA's 2009 notice of proposed rulemaking.

Rogers added that OSHA had issued interpretive letters saying that its standard would cover grain and other agricultural products as far back as 1986. In 1994, she wrote, OSHA rejected the grain industry's argument that grain dust shouldn't be covered by the Hazard Communication Standard.

The petitioners also argued that, statutorily, rules on combustible dust should be covered under a pending rulemaking on the subject rather than in the Hazard Communication Standard because there is as yet no clear definition of what constitutes combustible dust. Existing standards from OSHA and private industry are inconsistent and haven't been reconciled by rulemaking, the petitioners argued.

‘Operative Definition.'

The judge disagreed, saying that OSHA has supported an “operative definition” of dust in its National Emphasis Program on combustible dust.

“The various government and industry definitions of combustible dust are not as different as petitioners suggest: each definition, with varying phrasing, refers similarly to particles that may explode under certain conditions.”

Because, in the court's view, there is a “general consensus” on what constitutes combustible dust, OSHA could have reasonably concluded that it didn't need to spell out a uniform definition in its final rule.

Rejecting the petitioners' claim that OSHA's final rule is unconstitutionally vague, Judge Rogers said the rule, as well as a guidance document issued in 2013, “lay out reasonably consistent and clear instructions” on how employers should decide whether they have a combustible dust hazard.

Rogers rejected the petitioners' claim that, by failing to provide a definition, OSHA rendered its final rule unconstitutionally vague in violation of the Due Process Clause. The final rule, as well as a guidance document issued in 2013, “lay out reasonably consistent and clear instructions” on how employers should decide whether they have a combustible dust hazard, the judge said.

The court concluded by noting that the petitioners had argued that the final rule violates their First Amendment rights by requiring them to communicate combustible dust hazards. However, the judge concluded, petitioners made this argument in a footnote, and the D.C. Circuit generally doesn't address an argument “if a party buries it in a footnote and raises it in only a conclusory fashion.”

Judges Karen LeCraft Henderson and Thomas B. Griffith joined in the opinion.

Donald C. McLean of Arent Fox LLP represented the petitioners at oral argument. OSHA attorney Louise M. Betts represented the government.

Text of the opinion is available at http://www.bloomberglaw.com/public/document/Natl_Oilseed_Processors_Assoc_et_al_v_OSHA_et_al_Docket_No_120122/4.