The Occupational Safety and Health Administration (OSHA) has placed an emphasis on combustible dust hazards in recent years—and for good reason. Combustible dust has resulted in numerous deadly incidents over the years. While no OSHA standard directly addresses combustible dust, this has not hindered OSHA inspections and enforcement actions.
In the absence of specific guidance, OSHA has relied on the General Duty Clause and referenced the National Fire Protection Association (NFPA) standards when citing employers for combustible dust hazards.
There are proactive steps employers can take before, during and after OSHA inspects a facility where combustible dust may be present to help reach and maintain compliance.
What is Combustible Dust?
OSHA defines combustible dust as “a solid combustible material, composed of distinct pieces or particulates that presents a fire or deflagration hazard when suspended in air or some other oxidizing medium over a range of concentrations, regardless of particle size or shape.” When suspended in the right concentration and exposed to an ignition source, these dust particles can lead to fires, deflagrations or explosions that can cause chain reactions throughout a facility—and with potentially deadly results.
National Emphasis Program
To help protect employees from these hazards, OSHA initiated its Combustible Dust National Emphasis Program (NEP) in March 2008 after a dust explosion at the Imperial Sugar refinery in Port Wentworth, Ga., killed 13 and injured 38 others.
The NEP provides OSHA inspectors with a set of guidelines to follow when at workplaces where combustible dust could be present. The NEP does not create new rules or establish enforcement parameters, but it does provide that OSHA will inspect for, and issue fines related to, combustible dust hazards.
While the NEP does not create any specific standards to which employers must adhere, it does state that the NFPA standards should be consulted to identify potential hazards and abatement methods. The NEP also states that the NFPA standards are “useful in providing evidence of industry recognition of the hazard.”
Since adopting the NEP, OSHA inspectors have cited employers for combustible dust hazards under the General Duty Clause. Because OSHA has not adopted a specific combustible dust standard, the General Duty Clause remains OSHA’s primary regulatory enforcement tool to protect employees from these hazards.
General Duty Clause
The General Duty Clause (GDC) requires an employer to provide each employee with “employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm.” The GDC applies to all OSHA-regulated employers, which includes most private sector employers. OSHA routinely relies upon the GDC when a specific OSHA standard is not set forth relative to a particular hazard.
For OSHA to successfully cite a GDC violation, the relevant hazard must be:
- Recognized by the industry or the employer;
- Have caused, or be likely to cause, death or serious physical harm; and
- Have a feasible means available to correct the hazard.
OSHA has cited the NFPA combustible dust standards as evidence of all three GDC requirements. Many OSHA combustible dust citations also involve poor hazard communication, substandard housekeeping, undermaintained electrical components, a lack of appropriate personal protective equipment or a lack of fire extinguishers.
Pre-Inspection Considerations
As with any regulatory inspection, good preparation is key to being able to weather an OSHA inspection, especially one in which combustible dust may be an area of focus.
Every combustible dust compliance issue presents multiple approaches, and only a properly conducted Process (Dust) Hazard Analysis will provide the necessary guidance to determine the proper approach. Such an analysis can be costly and time consuming, but it still outweighs the costs of OSHA penalties and mandatory abatement measures.
If your facility falls into one of the industries (or SIC codes) listed in Appendix D-1 or D-2 of the NEP, having a recent Dust Hazard Analysis, or a written explanation of why one is not required, can be helpful in the event of an OSHA inspection. In addition to in-house resources and qualified independent safety and health consultants, employers also can take advantage of voluntary state consultation programs or safety and health reviews offered by many insurers to assess and understand combustible dust risks.
Having well trained and prepared employer representatives is also important. Employer representatives should be identified ahead of any inspection and should include at least one back up representative in case someone is unavailable.
Each of these representatives should be familiar with company policies and the location of health and safety documents. They should be prepared to welcome the inspector, determine the scope of the inspection, conduct appropriate company management and legal contacts, and manage the inspection, generally.
Keep in mind that trying to delay an OSHA inspection until a more convenient date may raise suspicions and increase the likelihood of a more comprehensive inspection or lead to other more serious issues.
Considerations During an Inspection
An employer’s representative should always accompany the OSHA inspector during the inspection. A labor union representative may also participate in the inspection if the employees are part of a collective bargaining agreement.
The employer’s representative should take the same photographs and record the same video as the inspector.
Similarly, to the extent possible, if the OSHA inspector collects samples or otherwise documents circumstances during the inspection, the employer’s representative should attempt to duplicate those efforts. The employer’s representative is allowed to mirror what the inspector is doing and should feel free to ask questions. If OSHA issues a citation, the documentation an employer collects during the inspection will be important in evaluating OSHA’s allegations and preparing a defense.
While an employer may ask the inspector to limit the inspection to the places and processes related to the specific hazard or possible violation that gave rise to the inspection, this can be difficult to manage for combustible dust. Because the accumulation of combustible dust can take place in most or all parts of many facilities, the scope of the inspection tends to be fairly broad. If possible, however, employers should try to keep the investigation focused, as any safety and health violations in plain view during the inspection might lead the inspector to expand the scope of the investigation.
Employer representatives should know they can elect not to answer questions that warrant a more detailed response or those that they are not confident or qualified to answer. In most cases, indicating that the employer will get back to the inspector because they do not want to provide incorrect information is a suitable response.
Post-Inspection Considerations
If, during an OSHA inspection, potential exposures related to combustible dust have been raised, an employer may choose to triage efforts to achieve compliance as swiftly as possible.
OSHA inspectors cannot issue citations; only area directors are able to do so. However, demonstrating compliance or abatement as promptly as possible is not only important for ensuring employees are protected but also can be advantageous in future discussions with OSHA. It is not necessary to wait for a citation before addressing potential areas of concern.
While achieving compliance at the inspected facility is likely the priority, if an employer has multiple facilities with similar operations, it can be beneficial to undertake the same efforts at those other facilities. Failure to do so can lead to an allegation of repeat violations, even if a different facility is involved.
Balancing available resources can be challenging when dealing with one facility, let alone multiple facilities. However, ensuring that baseline safety and health activities are not sacrificed at the expense of addressing inspection follow up is also important.
The Role of Counsel
Once the employer learns of compliance issues, they’re considered to have constructive knowledge of the hazard. In other words, the proverbial clock to achieve compliance is now ticking.
During what can often be a fast-moving period, it is important to ensure that communications remain privileged among employees and consultants. Conducting self-critical analyses and audits can be vital to establishing a robust and effective safety and health program. If these efforts are properly structured to ensure that communications remain privileged, they tend to be more robust and useful. This is particularly important when addressing combustible dust issues, as the analyses and audits tend to be wide ranging and can involve multiple parties.
Engaging qualified and experienced outside assistance early in the process can help ensure that internal compliance runs smoothly and effectively.
Megan E. Baroni is a partner at legal firm Robinson+Cole’s Environmental, Energy + Telecommuncations Group, and focuses on EHS issues. Christopher Eddy is an associate and focuses on environmental law, environmental litigation, retail energy supply and utility regulatory law. Peter Knight is a partner and focuses on litigation, defense of agency enforcement actions and regulatory matters. Jonathan Schaefer is a partner and focuses on environmental compliance counseling, permitting, site remediation, occupational health and safety, energy regulatory compliance and siting, and litigation related to federal and state regulatory programs.