Seyfarth Synopsis: Compliance with industry standard for combustible dust set for September 2020. Don’t delay, because OSHA is already citing employers using the not yet effective NFPA 652, Standard on the Fundamentals of Combustible Dust.
According to a 2018 report from the Chemical Safety Board (CSB), over the previous eleven years, there were 59 fatalities and 303 injuries associated with 105 combustible dust incidents. The vast majority of the incidents occurred in the food products, metals, and lumber and wood products industries.
The National Fire Prevention Association has updated an industry consensus standard (NFPA 652), calling for manufacturers in industries with combustible dust to complete dust hazard analyses of their facilities by September 7, 2020, and begin taking actions to reduce any related hazards.
While OSHA had proposed a combustible dust standard in 2009, it did not finalize the rule. However, OSHA has not let the lack of a specific rule prevent it from citing employers that fail to correct “recognized hazards.” OSHA also uses an assortment of existing standards and a National Emphasis Program (NEP), CPL 03-00-008 (October 1, 2015), to cite employers for unabated combustible dust hazards. The assortment includes:
- Grain-handling facilities are covered by 29 CFR 1910.272, which applies to grain elevators, feed mills, flour mills, rice mills, dust pelletizing plants, dry corn mills, soybean flaking operations, and the dry grinding operations of soycake.
- Other facilities that generate or handle combustible dusts that pose a deflagration or other fire hazard may be inspected and cited as specified in OSHA’s Combustible Dust NEP. Under the NEP, if lab results indicate that dust in the facility is combustible, and accumulations of combustible dust that are not contained within dust control systems or other containers (such as storage bins) are extensive enough to pose a deflagration, explosion, or other fire hazard, OSHA will use its housekeeping standards to issue citations (29 CFR 1910.22 (housekeeping) or 29 CFR 1910.176(c) (housekeeping in storage areas).
- Where combustible dust hazards exist within dust control systems or other containers, OSHA may issue citations under the General Duty Clause, section 5(a)(1) of the Occupational Safety and Health (OSH) Act, for deflagration or other fire or explosion hazards. We have blogged previously about OSHA’s aggressive use of the General Duty Clause (GDC). Combustible is an area where OSHA puts the GDC to work. See for instance, OSHA Failed to Follow Own Procedures in Issuing Suspect Guidance Documents, Inspector General Finds, Another Update from the 2019 ABA Occupational Safety and Health Law Committee Midwinter Meeting, Review Commission Says Manufacturer Recommendations and Consensus Standard Not Enough for General Duty Clause Violation, General Duty Clause and Company Polices — Review Commission Finds Issues Not Properly Tried.
- Facilities covered by the Process Safety Management (PSM) standard (29 CFR 1910.119) may also be subject to enforcement under the NEP. While the standard specifically excludes explosives and pyrotechnics manufacturing facilities, the NEP does not exclude facilities that manufacture or handle other types of combustible dusts (such as ammonium perchlorate) covered under the PSM standard.
According to representatives from the Solicitor of Labor, in 2017 Federal OSHA conducted 476 inspections related to combustible dust, with a resulting 319 citations.
Other standards—generally those having to do with fire prevention in some way—may also be applicable to combustible dust hazards. For example, a workplace that has a Class II location, and combustible dusts may be cited under 29 CFR 1910.307, Hazardous Locations, if their electrical equipment does not meet the requirements of that standard.
In order to determine whether a specific combustible dust hazard is recognized and whether feasible abatement methods exist (a prerequisite for a GDC citation), OSHA recommends that its inspectors consult applicable National Fire Protection Association (NFPA) standards.
The updated NFPA standard may be used to cite employers through the GDC.
OSHA also has several guidance documents related to combustible dust:
- Policy Memo on Accumulation Depth for Combustible Dusts(April 2015).
- Hazard Alert: Combustible Dust Explosions. OSHA Fact Sheet, (March 2008).
- Combustible Dust in Industry: Preventing and Mitigating the Effects of Fire and Explosion. OSHA Safety and Health Information Bulletin (SHIB) 07-31-2005, (July 31, 2005).
- Hazard Communication Guidance for Combustible Dusts. OSHA Publication 3371-08, (2009).