OSHA's Big Dust-Up: Why Is OSHA Initiating a Combustible Dust Rulemaking Now?

Over the past 30 years, there have been almost 300 known combustible dust fires and explosions in the United States, resulting in hundreds of workplace injuries and fatalities. Until recently, OSHA has regulated the hazards of combustible dust through various general industry standards as well as the General Duty Clause, which requires employers to protect employees against serious “recognized” hazards. However, in an Advance Notice of Proposed Rulemaking (ANPR) published in the Oct. 21, 2009, Federal Register, OSHA announced its intent to develop a comprehensive combustible dust safety standard.

Combustible dust explosions are not a new phenomenon, and OSHA has regulated industries susceptible to combustible dust hazards for decades. So what is driving OSHA's decision to promulgate a combustible dust standard? Why now?

There are 3 reasons: the Imperial Sugar explosion; violations cited under the General Duty Clause in a National Emphasis Program; and the Obama administration's focus on rulemaking.

IMPERIAL SUGAR AND CSB

In 2006, after several high profile industrial combustible dust incidents, the U.S. Chemical Safety and Hazard Investigation Board (CSB) conducted a combustible dust study 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 a 1,000 injuries or fatalities. CSB concluded that industry and safety professionals lacked awareness of combustible dust hazards, National Fire Protection Association (NFPA) and other national consensus standards were not being followed, state and local fire codes were not effectively addressing combustible dust, and OSHA's focus had been on enforcement activities triggered by incidents rather than on developing a standard to regulate combustible dust.

Then, on Feb. 7, 2008, a catastrophic combustible dust explosion struck the Imperial Sugar plant in Port Wentworth, Ga., claiming the lives of 14 workers and injuring 3 dozen more. CSB investigated the incident, and in its final report, 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 CSB's recommendation, OSHA has felt pressure to develop a standard from the public, industry and labor organizations and legislators.

NATIONAL EMPHASIS PROGRAM

In October 2007, OSHA initiated a combustible dust National Emphasis Program (NEP) to increase enforcement activities in industries that generate and handle combustible dust. Two years into the NEP, OSHA gave an account of its enforcement efforts and reported that it had conducted more than 1,000 combustible dust NEP inspections, covering workplaces in 64 industries and issuing nearly 5,000 citations.

The most noteworthy statistic from the NEP, however, has been the high percentage of citations issued under the General Duty Clause — roughly one in four, or a rate of approximately 25 percent, as compared to a rate of less than 4 percent from all other OSHA inspections. Accordingly, OSHA concluded that its existing standards do not provide a sufficiently comprehensive set of requirements to address the hazards of combustible dust.

A RENEWED EFFORT

For 8 years, OSHA under President George W. Bush emphasized voluntary compliance programs more so than traditional rulemaking and promulgated fewer new safety standards than it did during each of the Clinton, George H.W. Bush and Reagan administrations. President Obama's OSHA, by contrast, clearly prefers mandatory regulations.

The Obama administration has stated that rulemaking will be a priority of OSHA. Upon taking the reins at the Department of Labor, Labor Secretary Hilda Solis announced, “OSHA is reinvigorating the regulatory process.”

All industries should expect significant increases in rulemaking activity, including 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 chemical permissible exposure limits, a safety and health programs standard and the combustible dust standard introduced in OSHA's recent ANPR.

WHAT'S NEXT?

As part of the rulemaking process, in addition to asking for written comments on the ANPR, OSHA has kicked off a series of 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. At these meetings, industry representatives, safety professionals and the general public have the opportunity to comment on OSHA's combustible dust ANPR and to help OSHA shape the form and content of its new standard.

If your company operates one of the nearly 1 million workplaces or employs any of the approximately 22 million workers in the 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.

Eric J. Conn is a partner in the Washington, D.C., office of McDermott Will & Emery LLP. He focuses on occupational safety and health law and represents clients in all manner of dealings with OSHA and CSB. Contact him at 202-756-8248 or [email protected].