OSHA Poised to Pass on Combustible Dust in 2016

By Brian Dabbs

Jan. 11 — The Occupational Safety and Health Administration isn't likely to push forward on a comprehensive combustible dust standard this year due to the complexity of the hazard and an already robust regulatory agenda, emergency response and industrial observers tell BBNA.

OSHA targeted August for initiating a Small Business Regulatory Enforcement Fairness Act (SBREFA) review on combustible dust in the fall 2015 regulatory agenda, but so far the agency isn't signaling a genuine commitment to advancing the rulemaking.

OSHA Absent from NFPA Meetings

OSHA officials haven't attended National Fire Protection Association meetings on combustible dust standards-making for at least 18 months, two association officials told Bloomberg BNA Jan. 11. NFPA standards are widely viewed as industry benchmarks for dust deflagration and explosion, and the group's NFPA 652 combustible dust catch-all surfaced in recent months.

“Given my experience in watching this, I think there will be something else that gets in the way,” said NFPA Division Manager Guy Colonna.

OSHA continues to enforce a set of specific industrywide and sector-specific standards that may be used to cite combustible dust hazards, ranging from surface safeguards to mandates for grain handling facilities. The agency released an advanced notice of proposed rulemaking on combustible dust in late 2009, and held meetings for the ensuing several months. But following the consultations, the agency hasn't moved forward.

OSHA didn't comment on a timetable for combustible dust rulemaking in 2016 or its collaboration with industry to craft a template for a proposal. Proposed rules often are released following the completion of the SBREFA process.

Complicated Rulemaking

Dust-related deflagrations and explosions have many possible causes, making responsible regulation a difficult task, Marc Freedman, executive director of labor law policy at the Chamber of Commerce told Bloomberg BNA Jan. 11.

“It's not an intrinsic hazard; it's created by multiple factors that differ by substance and setting,” said Freedman. “In order to create a standard around combustible dust, it will take a lot of work. And I imagine not a lot of people at OSHA are excited about this, particularly this late in the administration.”

OSHA defines combustible dust as “all combustible particulate solids of any size, shape or chemical composition that could present a fire or deflagration hazard when suspended in air or other oxidizing medium.” Those solids include wood, sugar, fertilizer, dried blood, textiles, metals and many others. Combustible dust poses risks in virtually all manufacturing sectors.

The complexity of a combustible dust rulemaking may have caught OSHA somewhat by surprise, said Jess McCluer, National Grain and Feed Association director of safety and regulatory affairs.

“This does not appear to be a priority for OSHA like it once was,” said McCluer in a Jan. 11 interview with Bloomberg BNA. “It did appear to be a priority at the beginning of the administration, but after understanding the complexity it seems to have moved to the side. And other issues have moved to the top of the priority list.”

Robust OSHA Agenda

The coming year is expected to be busy at OSHA, which also poses an obstacle to rulemaking on combustible dust (45 OSHR 542, 5/28/15).

The agency recently sent a final rule on silica (RIN 1218-AB70) to the Office of Management and Budget, and a beryllium final rule (RIN 1218-AB76) may also be ready to move following more consultations. OSHA also is poised to publish a final rule on electronic injury and illness recordkeeping (RIN 1218-AC49).

“This is another item on the regulatory agenda,” said Freedman. “The notion that they're going to begin SBREFA in August is pretty hard to imagine. And the idea that they'd get a proposed rule out this year ... that would be a heavy lift.”

Damage to Continue

Still, dust explosions continue to harm workers and damage property, but no reliable, publicly available data exists on combustible dust citations. While OSHA maintains public records on citations associated with particular standards, the lack of an all-encompassing combustible dust rule inhibits retrieval of comprehensive data. The agency also relies on the general duty clause to cite many combustible dust violations.

In response to one recent combustible dust incident, in which a mechanic died after suffering severe burns, OSHA proposed more than $200,000 in fines for International Paper Co. in July for failing to provide appropriate protective equipment and training, conduct required inspections and implement safeguard procedures, among other violations, at its Ticonderoga, N.Y., facility (45 OSHR 777, 7/30/15).

Such loss of life will continue to happen in the future without a comprehensive combustible dust standard, said Peter Dooley, president of LaborSafe and a safety and health project consultant for the National Council for Occupational Safety and Health.

“Combustible dust has been on the agenda since 2009, and it's a hot topic because of all the horrible incidents that have killed workers, and all the combustible dust explosions over the past years,” said Dooley, in an interview with Bloomberg BNA on Jan. 8.

“Not every one of those results in catastrophic loss of life or property, but that happens. It's all a matter of proportions. When the next big one happens, it's going to have everyone scurrying around to get regulations in place,” Dooley said.

Dooley blamed the stagnancy on a combustible dust standard on an “abominable” regulatory process at OSHA, suggesting the agency needs to devise a better way to propose and promulgate rules.

The agency released guidance on combustible dust in May (45 OSHR 542, 5/28/15).

The guidance advises OSHA inspectors on how to cite combustible dust accumulations, using an algorithm that incorporates accumulation height and density, as well as covered surface space. For years, OSHA has relied on a 1/32-inch basis for citation. That guidance supplements the agency's Combustible Dust National Emphasis Program, reissued in 2008.

OSHA Looks to Geneva for Dust Recourse

In light of concerns surrounding loss of life and property damage, OSHA has pursued methods other than comprehensive rulemaking to address the risks. The agency recently amended its Harmonized Communication Standard to comply with the Globally Harmonized System for the Classification and Labelling of Chemicals, and qualified combustible dust as a hazardous chemical.

The National Grain and Feed Association fought hard against that qualification, but the U.S. Court of Appeals for the District of Columbia Circuit ultimately handed OSHA a victory (44 OSHR 1023, 10/30/14).

The court ruled OSHA did not have to define combustible dust.

Now the agency is angling to insert a chapter on combustible dust in the GHS, the association's McCluer said.

To contact the reporter on this story: Brian Dabbs at bdabbs@bna.com

To contact the editor responsible for this story: Larry Pearl at lpearl@bna.com

For More Information 
OSHA's Combustible Dust National Emphasis Program guidance is available at https://www.osha.gov/OshDoc/Directive_pdf/CPL_03-00-008.pdf.