2011 Rundown of OSHA’s Combustible Dust National Emphasis Program and Rulemaking

By Amanda R. Strainis-Walker and Eric J. Conn

OSHA’s keen interest in enforcement related to combustible dust shows no sign of waning as we close the door on 2011.  OSHA’s Combustible Dust National Emphasis Program (NEP), initiated in 2008, continued in earnest through 2011, and notably, has no expiration date.  The number of violations and the size of civil penalties arising out of the Combustible Dust NEP inspections continue to rise, and OSHA points to that data as support for its active pursuit of a comprehensive Combustible Dust Standard.

Combustible Dust NEP:

OSHA launched the Combustible Dust NEP after the U.S. Chemical Safety & Hazard Investigation Board publicized a study of 25 years of combustible dust incidents, which identified 281 combustible dust incidents that killed 119 workers and injured 718.  The NEP announced an aggressive inspection campaign with a scope that identified more than 30,000 facilities in 70 different industries as “at risk” for a combustible dust incident.

Since the Combustible Dust NEP inspections commenced, there have been more than 2,600 total inspections.

The resulting enforcement actions from these inspections have resulted in more than 12,000 violations (approx. 8,500 of which have been classified as Serious, Willful or Repeat), with an average of 6.4 violations per Chemical NEP inspection (twice the average of violations per all other types of inspections), and total civil penalties exceeding $24 million.

 

 

 

 

 

 

 

 

 

 

To date, the top six most frequently cited violations during Combustible Dust NEP inspections have included:

1. Hazard communication (1910.1200)
2. Respiratory protection (1910.134)
3. Housekeeping (1910.22(a))
4. Electrical safety (1910.305)
5. Lockout/Tagout (1910.147)
6. Electrical safety (1910.303)

Combustible Dust Rulemaking:

In October 2009, OSHA announced the issuance of an Advanced Notice of Proposed Rulemaking seeking comments regarding a comprehensive Combustible Dust Standard.  Since then, OSHA has been gathering information for its rulemaking docket through stakeholder meetings, site visits, and an expert forum.  The next step in the Combustible Dust Rulemaking is a Small Business Regulatory Enforcement Fairness Act (“SBREFA”) Panel to review the impact of the proposed rule on small businesses.  However, the SBREFA Panel has been delayed several times, in large part because OSHA has not been ready to unveil the actual proposed regulatory text for the Rule.

OSHA points to the “success” of the Combustible Dust NEP as evidence of a need for a comprehensive Combustible Dust Standard.

In a speech to the Steel Manufacturers Association in October 2010, the Assistant Secretary of Labor for OSHA, David Michaels, justified the rulemaking by explaining that “in [just] three years [of OSHA’s Combustible Dust NEP], we have found nearly 9,100 violations at inspected facilities . . . ."

The problem is, the NEP findings would only really support the need for a comprehensive Combustible Dust Standard if OSHA’s existing standards did not adequately outline for employers what steps they needed to take to protect employees from explosion hazards associated with combustible dust, or give OSHA the framework to adequately enforce unsafe combustible dust conditions through citations.  If that were actually the case; i.e., that OSHA’s existing standards were inadequate to address combustible dust hazards, then OSHA would surely be relying more heavily on its “catch-all” General Duty Clause in citations arising out of the Combustible Dust NEP.

In reality, however, that has not been the case.  The General Duty Clause logs in as the 7^th most frequently cited from the Combustible Dust NEP, with fewer than 500 total citation items as compared to the top 6 violations citing existing specific standards (listed above), which accounted for more than 4,300 total citation items.  Similarly, on OSHA’s “Safety and Health Topics” Page for Combustible Dust, OSHA identifies a litany of existing standards it has in its arsenal to address combustible dust hazards:

• § 1910 Subpart D, Walking-working surfaces (1910.22, Housekeeping)
• § 1910 Subpart E, Exit routes, emergency action plans, and fire prevention plans (1910.38, Emergency action plans)
• § 1910 Subpart G, Occupational health and environmental control (1910.94, Ventilation)
• § 1910 Subpart J, General environmental controls (1910.146, Permit-required confined spaces)
• § 1910 Subpart L, Fire protection (1910.157, Portable fire extinguishers / 1910.165, Employee alarm systems)
• § 1910 Subpart N, Materials handling and storage (1910.176, Handling materials / 1910.178, Powered industrial trucks)
• § 1910 Subpart R, Special industries (1910.269, Electric power generation / 1910.272, Grain handling facilities)
• § 1910 Subpart S, Electrical (1910.307, Hazardous (classified) locations)
• § 1910 Subpart Z, Toxic and hazardous substances (1910.1200, Hazard communication)

All of this begs the question whether there really is a recognized hazard that is not sufficiently addressed by existing standards.

Regardless of standards cited under the Combustible Dust NEP, and whether there really is a need for a Combustible Dust Standard, two things are apparent as we head into 2012: (1) OSHA is finding ways to generate very significant enforcement actions related to combustible dust against employers across a broad spectrum of industries; and (2) OSHA is moving forward with developing a new comprehensive standard to address the explosion hazards associated with combustible dust.

*  Note that the Combustible Dust NEP enforcement data referenced in this post is current through October 2011.