Combustible Dust Stakeholder Meeting
December 14, 2009
Meeting Summary Report
February 9, 2010
Table of Contents
2 OPENING REMARKS
3 ADMINISTRATION OF THE MEETING
4 SUGGESTED POINTS FOR GROUP DISCUSSION
5 CLOSING REMARKS
6 OPENING REMARKS
7 ADMINISTRATION OF THE MEETING
8 SUGGESTED POINTS FOR GROUP DISCUSSION
9 CLOSING REMARKS
This report summarizes key discussion points during two stakeholder meetings that the Occupational Safety and Health Administration (OSHA) convened pertaining to its rulemaking on combustible dust. The two 3-hour meetings were held on December 14, 2009, at the Washington Marriott at Metro Center in Washington, D.C. The purpose of the meetings was to obtain feedback from stakeholders on issues raised in the advanced notice of proposed rulemaking (ANPR) of a combustible dust standard. OSHA issued the ANPR on October 21, 2009.
Announcements of the stakeholder meetings were published in the Federal Register on November 10, 2009, and explained that parties interested in attending and participating should register in advance of the meeting. For these first two meetings, 71 people participated – 34 in the morning session and 37 in the afternoon. These participants included employer and labor representatives from industries that may be regulated by the standard, as well as consultants, attorneys, and other parties. All participants were given the opportunity to provide verbal comments at the meetings. Members of the general public were allowed to observe the meetings (but not participate) on a first-come, first-served basis as space permitted. Seventy nine people attended the two meetings as observers – 51 in the morning session 28 in the afternoon.
The stakeholder meetings provided a setting for interested parties to provide verbal comments on the ANPR. For feedback to be officially considered in the development of the proposed standard, stakeholders were instructed to submit formal written comments to OSHA by January 19, 2010.
Eastern Research Group, Inc. (ERG) provided logistical support for the stakeholder meetings, and a technical writer from ERG attended the meetings and prepared this summary report. This report captures the main discussion points that stakeholders raised during the meetings, but is not a verbatim transcript of the meetings. The content throughout this report reflects the remarks made by stakeholders at the meetings and should not necessarily be viewed as the opinions of ERG.
December 14, 2009
Meeting Summary Report
2 Opening Remarks
Dorothy Dougherty, Director, Directorate of Standards and Guidance, welcomed the stakeholders to the morning session of the Combustible Dust Stakeholder Meeting. Ms. Dougherty emphasized that the stakeholders should consider the meeting an informal discussion for OSHA to gather data, rather than a formal meeting or hearing. OSHA is planning to host two or three additional stakeholder meetings on combustible dust over the next several months. OSHA is considering holding one of the additional meetings in Atlanta, another in the Midwest/West, and perhaps another one in D.C. The purpose of this meeting was to obtain the best data and information for analysis and development of a protective and feasible standard for combustible dust. OSHA has been involved in a number of activities to support the combustible dust efforts, including releasing an advanced notice of proposed rulemaking (ANPR) in October, having technical staff actively participate in National Fire Protection Association (NFPA) committees, and enlisting contractors to conduct site visits. Ms. Dougherty stressed the importance of stakeholders submitting formal written comments to OSHA by January 19, 2010, for official consideration. The release date of the proposed standard has not yet been determined, but Ms. Dougherty emphasized that stakeholder input will help expedite these efforts. Ms. Dougherty highlighted the OSHA and Department of Labor staff who contributed to the combustible dust rulemaking effort, and thanked the stakeholders for their time and participation.
Later during the meeting, OSHA Deputy Assistant Secretary Jordan Barab welcomed the stakeholders and provided background on the combustible dust issue. Mr. Barab stated that OSHA has been involved in this issue for quite a while. The Chemical Safety Board (CSB) report identified 119 fatalities, not including the Imperial Sugar incident. Mr. Barab expressed his concern over the unreported lower-impact dangers of combustible dust that could act as warnings, and requested that the stakeholders take these dangers into account when discussing this issue. OSHA has implemented several efforts to address the combustible dust issue, such as guidance documents, outreach, and a national emphasis program to identify the scope and seriousness of the problem. Mr. Barab stressed the importance of the meeting, and of OSHA's commitment to an open and transparent regulatory process and to worker protection. Mr. Barab requested that the stakeholders actively participate in the combustible dust forums to assist OSHA in identifying what practices are effective in workplaces so that OSHA can develop a protective standard. Mr. Barab concluded by encouraging the stakeholders to participate in the rest of the rulemaking process.
3 Administration of the Meeting
Meeting facilitator Elizabeth Vasquez (of Management Consulting Associates) provided the stakeholders with an overview of the meeting format. Ms. Vasquez explained that the meeting should be considered an informal forum to present comments, and that any written statements provided during the meeting should not take the place of any formal comments submitted to the docket. Ms. Vasquez encouraged the stakeholders to provide their points of view, explaining that although the meeting was being recorded and a summary report developed, no attribution would be made to individual commenters. Ms. Vasquez informed the observers that OSHA would invite questions and comments from them at the end of the meeting, if time allowed.
Ms. Vasquez also provided the stakeholders with an overview of the agenda, and presented the specific questions that OSHA requested the stakeholders to address.
4 Suggested Points for Group Discussion
OSHA representatives sought specific information regarding the use of NFPA Standards, the scope of the combustible dust standard, the economic impact of implementing such a standard, and hazard mitigation practices. The following is a summary of the key stakeholder comments made during the meeting. Comments are grouped together by topic, without reference to the identity of the commenter.
4.1 NFPA Standards—Do you use NFPA standards to mitigate the hazards of combustible dust? If so, what benefits or challenges have you encountered? What benefits or challenges do you foresee if OSHA uses NFPA standards as sanctioned compliance alternatives?
Stakeholders provided the following comments and recommendations regarding the use of NFPA standards in developing a combustible dust standard:
- The use of NFPA standards poses two challenges for small businesses:
- Language: The use of plain language is essential. Currently, the language used in the NFPA standard is not much easier to understand than government standards. In order to communicate information to those who are not sophisticated in interpreting regulations, the standard must use language that would be accessible to the small business community. In order to ensure compliance, OSHA needs to make sure that small businesses understand the requirements of the standard. OSHA should consider conducting focus groups to ensure that the standard uses language easily understood by small businesses.
- Financial challenges: When Congress passed a toy safety standard, small businesses were immediately faced with the financial burden of having to purchase the standard. Such a financial burden could cause small or start-up businesses to go out of business (e.g., companies that make only two or three boats per year). OSHA needs to address such an issue and make any mandatory standard available to small businesses at no cost.
- NFPA standards are viewable for free via the Internet in an online "read only" format. Hard copies or electronic versions must be purchased. However, some small businesses (e.g., boat makers) may not yet have access to the Internet so OSHA should not rely on the Internet exclusively.
- NFPA provides outreach to stakeholders to ensure that small businesses understand the NFPA standards, and welcomes the opportunity to work with OSHA on outreach efforts for the combustible dust standard.
- NFPA also provides training to stakeholders to help them implement the NFPA standards.
- Agencies are supposed to base standards on existing consensus standards when making rules. NFPA standards are industry-specific and would provide a good framework for the combustible dust standard.
- NFPA 654 is a good starting point. However, OSHA should not focus solely on NFPA 654 given that many other standards are involved.
- OSHA should consider making the combustible dust standard industry-specific and incorporate process safety management, similar to Europe.
- NFPA is a guide, but a voluntary standard is not enough. OSHA should aim for a mandatory standard.
- OSHA should publish the standard in its entirety, and make it accessible and available, especially if incorporated by reference.
- In addition to plain language, specific technical language is also important (e.g., defining what is excessive and combustible so that small businesses are able to interpret the specifications). The standard needs to read like a manual to provide guidance and ensure that it is enforceable.
- Small businesses do not want to be put out of business by excessive regulation, but also do not want to be put out of business by explosions or have workers die.
- NFPA guidelines are complex and do not use consistent language (different committees write different sections). OSHA should use more straightforward and cohesive language to explain what is required.
- When developing the standard, OSHA should also take into account that 1) time is of the essence; 2) dust explosion is an inexact science and the standards will need to be constantly updated to reflect current science; and 3) results using the current dust testing method could be faulty (OSHA dust testing is currently under review) so OSHA should consider using alternative screening methodologies.
- NFPA 654 is a useful model and should be a key reference in the combustible dust standard. This standard is currently being updated, and the new NFPA edition should be released in 2011. If OSHA uses NFPA 654 as a framework, or incorporates it as a reference, OSHA should use the most current version. Time is of the essence, but OSHA needs to take into account the state of the art.
- Many NFPA standards are unclear, and often small businesses do not know that their facilities have a problem. Liability insurers could be a key element to the process by explaining the standards to small businesses in a way that they can understand and implement.
- The cabinet industry is predominantly made up of smaller businesses, and regulations are often a mystery to them. Small businesses may respond better to a performance-based approach, which allows for innovative technology and creativity in efforts to comply with the standard.
- The smaller-sized plants in the food manufacturing industry need guidance as soon as possible. In addition to the NFPA consensus standards, unions would also be a good place to start.
- Many businesses that have less than 50 employees are not aware of the NFPA standards. Once the businesses are made aware of the regulations, they want to keep their workers safe. Elements of the updated NFPA 654 (currently in development) should be incorporated into a language and format that small businesses can understand.
- Current consensus standards are a good place to start but are incomplete, leaving businesses unsure of what practices to apply.
- Regulations are often released that are impossible to implement. Without stakeholder input, regulations can result in dangerous scenarios with unintended consequences.
- Education is critical in the implementation of the standard. OSHA needs to put into practice a sustained outreach and awareness approach, while keeping up with current science and technology (including equipment).
- OSHA needs to ensure that the standard is uniform and consistent with existing rules.
- OSHA should adopt the principles of the NFPA standards. All consensus standards are not useful all of the time. NFPA 654 is the most relevant, but others exist that are also applicable. NFPA 654 would need to be expanded so that businesses do not need to refer to multiple resources.
- CSB recommended that OSHA develop the regulatory standard quickly and effectively with enhanced education.
- Using NFPA standards as a compliance alternative to the OSHA combustible dust standard would be a reasonable option (and good for companies that are already using NFPA standards), as long as the NFPA standards contain all the key regulatory elements that OSHA includes in the combustible dust standard (i.e., the alternative standard provides equivalent or greater protection than the OSHA standard) and the employer is required to develop a comprehensive safety plan.
4.2 Scope—Are there facilities that handle combustible dust that should not be covered, or are there certain combustible dust materials that should not be covered? If so, on what technical basis?
- All sites that handle combustible dust should be covered by the standard (unless covered by another industry-specific standard).
- If a site does not handle combustible dust, or if another industry-specific standard already applies to the site that provides equivalent protection, the site can be excluded. These two situations should be the only exceptions. For example:
- Specific noncombustible mineral dusts found in the mining environment should be exempt from the standard (e.g., silica, sulfates, limestone).
- Utilities that have industry-specific standards should be exempt. Multiple standards would cause confusion.
- Facilities should consider reevaluating the heating process. When heating fuel (i.e., natural gas) is reintroduced into the process, the dust could blow up (e.g., cement, some aggregates, certain metals). One option is to incorporate a venting mechanism.
- A risk-based approach that takes the specific substances into account could have some merit.
- Cement and aggregate industries are covered under Mine Safety and Health Administration regulations.
- Further exploration will probably find that silica, sulfates, and limestone are not combustible and, therefore, outside the scope of the OSHA combustible dust regulation.
- Safety professionals will want to conduct risk assessments, which should be a part of any rulemaking.
- Material safety data sheets (MSDSs) should indicate whether a material is a combustible dust hazard.
- The standard should cover small dust collectors. Small dust collectors that are currently on the market can be dangerous if used indoors. OSHA cannot prohibit the production of them, but many exist.
4.3 Economic Impact—What kinds of costs and benefits do you foresee? What regulatory approaches do you think would be most effective in minimizing costs and optimizing benefits?
- The cost of retrofitting old equipment would result in economic hardship. For example, updating power plant equipment according to NFPA 654 would result in a substantial economic burden, costing about $6 million per power plant. If current equipment can meet standard requirements, facilities should not have to replace the equipment.
- Five elements are necessary for a combustible dust explosion to take place. Not every kind of dust is combustible. Over half of dust explosions are caused by dust collectors. Dust collectors draw dust into an enclosure, and if the dust is combustible, then an ignition source could cause an explosion. Employers need to ensure that an explosion vent is present, and should keep the dust collector outside or on the roof.
- The boat-building industry has difficulty keeping up with existing regulations, let alone new ones. OSHA needs to streamline the new standards to make implementation easier on small businesses.
- The Regulatory Flexibility Act requires that OSHA evaluate the effect of a regulation on small business. OSHA should host a small business panel and invite small businesses to discuss the impact of the standard and potential alternatives.
- Record-keeping is a burden on employers. Safety professionals spend a significant amount of time dealing with the associated paperwork. Ensuring that workers and unions have access to records is critical for getting workers involved and informed.
- A large retrofitting operation is currently underway in the food products industry that provides an estimate of current costs associated with bringing equipment up to state-of-the-art. The cost to bring one spray dryer up to specifications is roughly $500,000. This total includes an average of $240,000 per machine to upgrade, $100,000 each for an explosion suppression system, and $150,000 to $250,000 each for explosion venting. An additional $225,000 was required to upgrade seven dust collectors at another facility. On average, retrofitting the dust collectors cost $35,000 per collector for proper venting or suppression system, system isolation, and proper grounding and bonding.
- Small businesses often are paralyzed by too great a regulatory and/or economic burden. The requirements of the standard need to be manageable so that employers are able to implement them. OSHA needs to involve small business when developing the standard to ensure that the requirements are feasible.
- The new standard will pose challenges to small business employers who are not experienced in retrofitting and testing. Small businesses will have trouble acquiring assistance on combustible dust issues. Not many inspectors are trained on combustible dust. Small businesses will have to rely on insurance representatives, who are not combustible dust specialists. Small business employers need combustible dust advisors. American Society of Safety Engineers members are a potential resource. OSHA should evaluate its resources for employer compliance assistance (not enforcement).
- Dust collectors are responsible for half of the combustible dust hazards at facilities; the other half is predominantly a matter of good housekeeping. Dust collectors and good housekeeping do not require expensive equipment or practices. However, many facilities are not in compliance.
- Industry needs to be educated and allowed time to implement hazard reduction requirements (e.g., retrofitting, testing, moving dust collectors outside). Difficulties with implementing the standard are not always a matter of cost, but a matter of time for the facilities to make the changes.
- Additional studies are needed on combustible dust hazard abatement. Combustible dust testing for individual facilities imposes a financial burden on small operations (each test costs about $1,500).
- Significant costs are associated with implementation of the standard and the associated upgrades that will be required. NFPA will help OSHA develop guidelines, checklists, and outreach to assist the small business community in complying with the standard. These efforts should help minimize the economic impact on small businesses.
- Stakeholder involvement will help the acceptance and implementation of the standard.
- Accidents will always be part of the work environment. Flame-resistant clothing for workers offers protection for workers. The costs associated with protective clothing are worth the expense.
- The standard needs to balance the economic impact of implementation with the emotional cost and loss of life associated with the explosions. The ultimate goal of the standard should be to protect workers while using economically feasible methods.
- OSHA needs to consider the economic implications of domestic companies competing with imports. Small businesses could go out of business struggling to afford the costs of implementing the standard.
- Using good safety practices from the beginning is less expensive than going back and fixing problems after an accident has occurred.
- Smaller businesses have a smaller bottom line. Risk assessments allow small businesses to address hazards over time, not on a sudden basis. This distributes the costs over time as opposed to companies incurring a large, crippling cost at one time.
- OSHA should require training programs for all those who handle combustible dusts, including managers, operators, and staff. Training programs could educate workers on issues from housekeeping to shutting down operations if something goes wrong. Workers need to be trained on troubleshooting and managing processes to help prevent accidents.
- Small businesses pay approximately 45 percent more in regulatory compliance costs compared to large businesses. Small businesses have to hire consultants, contract out testing, etc. Financial impact will be greater on small businesses.
- The main concern for small businesses is recurring, unnecessary costs. Common sense alternatives need to be developed and available to small businesses. If a small business does not have adequate resources, the business could choose an uninformed, expensive option. Mitigating the impact on small businesses would require significant expense, time, and effort. OSHA needs to educate small businesses owners on how to evaluate and choose the best and most economical option. OSHA should talk to Chris Wagner at the Internal Revenue Service (IRS) about outreach. The IRS has a great small business outreach program.
- Even large companies sometimes have small operations. Plant size often varies within a large company. Smaller plants can have similar economic issues to small businesses due to limited fund allocation. Large companies may provide some support to the smaller plants, but with a limited budget.
- OSHA recognizes the importance of very small businesses. OSHA reduces fines for small businesses, but other costs are involved. Small businesses face the challenge of hiring legal staff. Lean manufacturing or lean production (referred to as "lean") has been very successful in engaging managers and employees in safety improvement. OSHA should help small businesses protect their financial sustainability. OSHA is encouraged to incorporate language into the rule that emphasizes employee involvement (e.g., Lean concepts). Employee involvement should not cost small businesses a significant amount of money, but would help decrease hazardous situations.
- Safety professionals do not support a blanket exemption for small businesses based on size. Dangerous scenarios will cause explosions no matter what the size of the business. The challenge with very small businesses is identifying these companies. Many small businesses do not belong to larger trade associations. Often the first encounter OSHA has with these businesses is during a site visit for the national emphasis program. OSHA should start identifying very small businesses via state associations or local chambers of commerce (as opposed to national associations) prior to the rule. Contacting large trade associations might not reach very small businesses.
- Businesses can be broken down into two categories: 1) larger companies that are expected to know, or are capable of knowing, about new standards; and 2) smaller companies that are less likely to know of new regulations because they do not have a designated safety or human resources person (companies employing fewer than 50 workers often fit into this category).
- Insurance carriers have some role in educating small businesses on general safety regulations but do not focus specifically on combustible dust. OSHA should conduct outreach to insurance carriers.
- OSHA should also conduct outreach to fire inspectors, who are generally unfamiliar with combustible dust issues. However, fire inspectors do not visit businesses very often.
- The OSHA Alliance Program has been very successful on the state and national level (although some employers are hesitant to ask OSHA about it).
- NFPA provides free, but limited, training to fire marshals. Fire marshals are often reluctant to inform business owners that their housekeeping practices are inadequate and could lead to dangerous situations. Marshals do not have a complete understanding on what is required for the different industries.
- Another issue is that insurance companies have their own standards, and often only look at the dust collectors and other obvious components.
- OSHA could work with trade associations to communicate the importance of this standard to industry. Communications could also pass along housekeeping information.
- OSHA will conduct an inspection of one plant after 10 years and find numerous citations, and then visit all the other companies in that field, without warning. Often small businesses are not aware of new regulations after such a long period. OSHA needs to provide notice to plants they are visiting and inform them of any new regulations since their last inspection.
- Safety is the cost of doing business. OSHA should conduct extensive outreach to assist companies.
4.4 Hazard Mitigation—How do you determine where engineering and/or administrative controls are applied? Do you use a hazard analysis or other methods to make this determination?
- The new version of NFPA 654 contains principles that apply to all industries, including those places with combustible solids, and should be used as model for the combustible dust standard. The new NFPA 654 provides a great platform for determination of risk.
- The OSHA process safety management standard could be written to include combustible dust.
- OSHA should provide assistance to small businesses to ensure that their safety and health management systems correctly address the combustible dust standard. OSHA should provide instruction that walks a business through a hazard analysis assessment. Specifically, OSHA should:
- Address the introduction of new equipment and materials.
- Encourage companies to conduct self-audits (OSHA should not use the results against the company during inspections).
- Encourage greater knowledge of risk assessment among employees.
- Use subject matter experts to understand how existing systems work and to stay abreast of current technology. (Small businesses typically do not have in-house expertise.)
- Determine whether a reporting requirement is warranted.
- Establish a common performance-based method for assessments.
- Establish a method to classify dusts with different chemical compositions and different particle sizes.
- Address control measures of differently sized dusts (smaller-sized dust has higher explosivity and would require different control measures than larger-sized dust).
- Address the issue of dust layer depth. (NFPA is investigating this ever-changing issue and recommends using a risk-based method.)
- Housekeeping is expensive, and should be viewed as a secondary means of prevention. Dust control should be considered the primary means. Housekeeping expenses will decrease if companies implement better primary prevention (i.e., implement controls to prevent dust from escaping in the first place).
- Housekeeping is an administrative control that requires employer administration, time and resources, training, and proper equipment. Given the extensive resources required, housekeeping is an issue for most industries.
- OSHA should ensure that properly trained scientific experts are involved in the hazard assessments.
- Worker involvement is essential. Operators of the machinery provide crucial knowledge and information on any hazards associated with processes and equipment (e.g., small fire locations, where systems are failing). OSHA should include language in the combustible dust standard to protect workers who report these types of issues. Workers should feel safe, and reporting such issues ultimately protects the workers and benefits employers.
- Housekeeping is only one component of a system of controls. Companies should not rely solely on housekeeping for hazard prevention.
- Companies need to identify problems and institute preventive maintenance. Companies need to apply a holistic approach and create a hazard mitigation system that incorporates both engineering controls and housekeeping.
- Guidelines and standard operating procedures (SOPs) for identification and prevention are not factored into costs, but part of management and administrative expenses. Identifying issues (e.g., faulty valves) and understanding equipment and processes (e.g., what types of vacuums to use, when to use compressed air) could keep costs down by preventing product loss. A good management system would decrease costs (e.g., lower housekeeping costs because fewer employees would be needed to clean up, vacuum, etc.).
- A performance-based approach for hazard mitigation is very much supported; however, a prescriptive approach could better serve some industries. A performance-based approach is often more complicated to implement. A prescriptive standard with well-devised requirements for engineering, education, and housekeeping would be more effective, less confusing, and implemented in a timely manner.
- OSHA informed the stakeholders that the source of data will be provided in ANPR Table 1; however, the table is not definitive regarding the scope. OSHA will provide more background information in the docket.
5 Closing Remarks
OSHA representatives thanked the stakeholders for their participation. Ms. Dougherty emphasized that OSHA has not started writing the standard yet, and that the stakeholder input will really help OSHA formulate the standard. Therefore, Ms. Dougherty urged the stakeholders to stay active in both the informal meetings and the formal comment submittal process. Although OSHA has not set a release date, OSHA has made the standard a priority and is trying to move as quickly as possible. Ms. Dougherty informed the stakeholders that the next steps following the stakeholder meetings are to start the SBREFA process with its associated meetings with small entity representatives. Ms. Dougherty closed the morning session by encouraging the stakeholders to help expedite the rulemaking process by engaging other stakeholders.
* * * *
December 14, 2009
Meeting Summary Report
6 Opening Remarks
Dorothy Dougherty, Director, Directorate of Standards and Guidance, welcomed the stakeholders to the afternoon session of the Combustible Dust Stakeholder Meeting. Ms. Dougherty made the same opening remarks as at the morning session (see Section 1 of this report).
Later in the meeting, David Michaels, Assistant Secretary of Labor, welcomed the stakeholders and provided background on the combustible dust issue. Dr. Michaels stated that these informal meetings are a way for OSHA to learn first-hand about stakeholder concerns. Combustible dust accidents increased from 2006 to 2008. This issue is more than just statistics: people were killed. Dr. Michaels stated that OSHA is facing a complex task, but is committed to helping employers and employees. Dr. Michaels concluded by thanking all the stakeholders for their participation.
7 Administration of the Meeting
Elizabeth Vasquez, the meeting facilitator, provided the stakeholders with the same overview as at the morning session (see Section 2 of this report).
8 Suggested Points for Group Discussion
OSHA representatives sought specific information regarding the use of NFPA standards, the scope of the combustible dust standard, the economic impact of implementing such a standard, and hazard mitigation practices. The following is a summary of the key stakeholder comments made during the meeting. Comments are grouped together by topic, without reference to the identity of the commenter.
8.1 NFPA Standards—Do you use NFPA standards to mitigate the hazards of combustible dust? If so, what benefits or challenges have you encountered? What benefits or challenges do you foresee if OSHA uses NFPA standards as sanctioned compliance alternatives?
- Many companies became aware of (and started implementing) NFPA standards after an OSHA citation.
- NFPA 505 is a dangerous document that includes unsafe practices. OSHA should be wary when adopting NFPA standards.
- NFPA standards are well-researched and contain good technical detail; however, implementation of the standards is confusing. Companies are often unsure how and when to implement an NFPA standard. In some instances, parts of many different NFPA standards will apply to a situation, and in other situations, several different standards will apply to a single situation. Companies are confused on which standard to follow, and on which one they will be held accountable for. OSHA should focus on reducing the confusion of implementation.
- OSHA should seriously consider elements of the NFPA standards during a comprehensive rulemaking process; however, certain elements that are not included in the NFPA standards should also be considered. For example, employee involvement should be part of the standard development process.
- NFPA 70E (Standard for Electrical Safety in the Workplace) is an especially good model on how to administer hazard assessments. Concern for electrical safety increased considerably in the 1970s after a series of serious accidents. As a result, industry worked with OSHA to establish an effective standard. Similar collaboration occurred for NFPA 654 to reduce explosions and injuries.
- Pure adoption of NFPA standards would be a big mistake. Principles and research of the standards are excellent, but the standard did not undergo the full regulatory process (e.g., no economic analysis was done).
- OSHA needs to address whether the combustible dust regulations will supersede other standards. OSHA representatives informed the stakeholders that no decision on this matter has been made. Because the standard has not been written yet, no decisions have been made on the scope.
- OSHA general industry standards provide excellent groundwork. The recent status report on the Combustible Dust National Emphasis Program, released in October, indicated that 2,200 of approximately 4,000 citations involved combustible dust. Ninety percent of the citations are for general industry (housekeeping, etc.). However, no mention of combustible dust is found in general housekeeping regulations.
- NFPA standards have a good infrastructure but OSHA needs to develop something representative of modern technology. OSHA needs to focus on more than just best engineering practices, and consider administrative controls, personal protective equipment (PPE), and design.
- OSHA should use current information, but avoid redundancy. NFPA 654 should not be a requirement based on the concern that OSHA will cite facilities for requirements that were not in place when the facilities were built. Existing facilities could face hardships trying to retrofit their equipment to meet this standard. The OSHA standard should attempt to satisfy priorities.
- Several concerns exist for using NFPA standards as a basis for an OSHA standard.
- Costs: NFPA standards do not include an economic analysis and, therefore, do not consider the high costs of implementation.
- Complexity: NFPA standards are confusing to implement.
- Prescriptive: NFPA standards tell facilities what they should do, but do not provide instructions or suggestions on how to accomplish it.
- Incorporating by reference: NFPA standards are updated frequently and, therefore, would be hard to reference in the standard.
- NFPA 2112 and 2113 are also relevant. The two standards provide companies with information on what to do after a combustible dust event occurs. NFPA 2113 states that combustible dust is the number two cause of flash fires.
- Any discrepancy between NFPA standards and the OSHA standard would affect small business. Small businesses rely on insurance providers or fire officials for information, and are often unaware that they are not in compliance with a standard until cited by OSHA.
- NFPA standards have many elements not included in OSHA requirements, such as design, construction, and operations. However, NFPA standards do not really address the human element. OSHA requirements address work practices, housekeeping, and other aspects that protect workers.
- NFPA standards are consensus and, therefore, involve stakeholders and address stakeholder concerns. NFPA should consider developing a proper framework to integrate their series of standards to ensure consistency, and to make them easier to understand and enforce. NFPA standards continuously evolve as more information on hazards become available. NFPA standards are available electronically.
- Stakeholders should provide examples of "too complex" NFPA language and "plain language" in their formal comments to OSHA.
- NFPA standards are written by technical experts and consultants, often resulting in complicated standards with no clear explanation of the background science used to develop the requirements (e.g., the equation used to develop the requirement for dust layer level and the assumption that the dust becomes airborne).
- Employees should have a role in the development of standards; instead, technical standards are often created by individuals who have not even talked to workers who use the standards and who are familiar with the processes and equipment.
- Small businesses often have difficulty funding a representative to participate on NFPA committees.
- OSHA should address any overlap with existing standards (e.g., facilities that have bucket elevators and are not in the grain industry need to follow grain standards).
- Overestimation of risk can be more dangerous than the targeted hazard.
- Secondary fires are of more concern than primary ones. The U.S. Fire Administration has been documenting fires and causes for several years. Findings indicate faulty equipment as the leading cause.
- In 2008, over 80 percent of combustible dust incidents were combustible-dust-related fires, and 30 percent of dust explosions occurred at facilities that had experienced prior related fires.
- Facilities need to identify risks, especially precursors to explosions. Housekeeping is often a major risk factor.
- OSHA is trying to address whether to incorporate the NFPA standards by reference, pull in text from the NFPA standards, or use NFPA standards or others as compliance alternatives. The latter option gives employers more choices, and would allow small businesses to follow a performance-based standard.
- NFPA standards are reviewed every 5 years to ensure that the most up-to-date science is included. If OSHA incorporates NFPA standards by reference, OSHA must consider whether it is capable of reviewing the combustible dust standard every 5 years and updating the standard as science evolves. The compliance alternative option could potentially make it easier to update the OSHA standard.
- Small companies may face difficulty being part of the rulemaking process due to financial issues. Small businesses often learn about standards after being issued a citation (e.g., one company was cited for NFPA 654). They must often resort to terminating employees in order to afford an engineer to come in and address the violation. When OSHA returns to the company, the business is told that the remedy is inadequate. One small business is spending 34 percent of its gross revenue to comply with OSHA standards.
- NFPA provides little guidance to small businesses on how to identify risk. An engineer or specialist is often required to address different aspects of risk identification.
- OSHA Compliance Safety and Health Officers (CSHOs) cannot enforce NFPA standards. OSHA needs to hire enforcement personnel.
- The OSHA standard should include management leadership and employee participation. Complying with NFPA standards should not excuse facilities from including management and employee input.
- OSHA should provide education to businesses to aid them in understanding and complying with the standard. NFPA attempts to meet the need for education outreach through free training to facilities and OSHA.
- OSHA has an interactive program for fire prevention on its Web site ("Fire Safety Advisor") that is an excellent resource and provides an example of a potential tool that OSHA could use for combustible dust (to download the program, search for "fire prevention" on OSHA's Web site). Using this interactive program, a company inputs requested information, and the program provides a printout describing what the facility needs for fire protection, housekeeping, etc. However, the program does not include combustible dust. OSHA should develop an interactive tool for the general industry standard (which includes fire protection, housekeeping, and hazard identification) and include information on combustible dust to assist small businesses in addressing the explosion issue.
8.2 Scope—Are there facilities that handle combustible dust that should not be covered, or are there certain combustible dust materials that should not be covered? If so, on what technical basis?
- OSHA needs to provide clarity on what the rule covers (e.g., white potato was just added to the list). Businesses want OSHA to educate them (e.g., is greasy fish meal that is not dusty okay?).
- OSHA needs to consider the financial ramifications of testing for combustible dust. Some facilities have multiple production lines throughout which materials can have changing chemical and physical states. Testing to fully characterize the changing nature of these materials would be extremely expensive, considering that some individual analyses can cost $3,800 per test. Many small businesses already have difficulty paying such a steep fee.
- OSHA needs to consider what is expected of businesses at each stage of the production and manufacturing process. For example, a research and development company that deals with manufacturing pet food can be cited for violation involving pelletizing fish meal with ash (a combustible dust); however, the company that supplies the fish meal with ash is not penalized. Processing alters a product. For example, milk in liquid form is not explosive but milk powder is highly reactive. A tank of milk is not hazardous, but when milk is processed into milk powder, the result is a combustible dust hazard. The MSDS does not list the hazard severity because the processor of the milk powder is not the original raw source (the hazard communication standard does not require testing at raw source). In some cases, raw source manufacturers may not know the effect that downstream processing will have on a product. In other instances, manufacturers may not provide accurate MSDSs (a review of 150 MSDSs from product manufacturers revealed that only a few had limited information on combustibility), especially regarding flashpoint, explosivity, and combustibility (these values can change in different conditions). Companies may transport products in dust form but the MSDSs do not state that the products are dust hazards and provide no information on explosivity. Therefore, OSHA needs to determine who should be regulated under the combustible dust standard and who should be responsible for testing and developing accurate MSDSs (the manufacturer versus the user of products containing combustible dust). Overall, OSHA needs to address the larger issue of hazard communication throughout the life cycle of a product. This is a complex issue that may require revising the hazard communication standard.
- The combustible dust standard needs to apply to all types of facilities where combustible dust is present; however, some facilities may require more stringent requirements than others, depending on the materials and how is the materials are processed.
- OSHA needs to define the dividing line between related standards (e.g., NFPA 564, grain standard), and note clear exclusions when appropriate.
- Defining the scope of the standard is challenging. OSHA should make an effort to align the standard with Mine Safety and Health Administration rules on mining products and mining facilities to balance the scope of the two standards. OSHA will also address hazard identification issue.
- OSHA needs to properly define combustible dust, addressing particle size, moisture content, etc. OSHA should also include a list of dusts that are not combustible. OSHA does not need to regulate combustible dust outside buildings.
8.3 Economic Impact—What kinds of costs and benefits do you foresee? What regulatory approaches do you think would be most effective in minimizing costs and optimizing benefits?
Bob Burt, Director, Office of Regulatory Analysis, provided a brief background on economic analysis (i.e., overall cost-benefit analysis). The OSH Act requires that OSHA perform a technical feasibility study of the standard. In addition, in accordance with the Small Business Regulatory Enforcement Fairness Act (SBREFA), OSHA will also hold a panel for small businesses affected by the standard to obtain input. OSHA is interested in benefits and costs, with special interest in small businesses.
- In addition to economic impact, OSHA should be interested in the human impact (i.e., how workers and their families are affected). OSHA should view PPE as important. OSHA should recommend that a facility conduct a solid assessment of whether a hazard is present, and then implement appropriate PPE for the situation. PPE has become more comfortable (e.g., wicking action). A study on burn centers conducted from 1999 to 2008 revealed that of the 127,000 cases, 4,466 were work-related involving fire and flame. The medical costs for burn treatment for the 4,466 people totaled $1.3 billion. The cost to have equipped the burn victims with PPE is $4.46 million. Using PPE would have resulted in $900 million in savings.
- OSHA should evaluate the costs and benefits for better outreach and improved enforcement, and then decide on a performance-based standard. OSHA needs to be a good steward of resources. OSHA should start evaluating costs prior to the development of the regulation.
- Burn injuries are the second most expensive injury requiring hospitalization in the United States. An Institute of Electrical and Electronics Engineers (IEEE) paper specific to the electric utility indicated the same cost ratio previously discussed. Victims were not wearing appropriate PPE, and the medical costs for the two incidents totaled $2 million. To equip the workers with PPE would have cost a total of $50,000 for the two incidents.
- OSHA should factor the cost of identifying the risk into the economic analysis. Defining combustible dust would help decrease costs.
- One of the major impacts on the economics of the new standard would be the ease of interpretation. The ease of interpretation would make a huge impact on the cost of compliance for a company. An explicit standard that guides the companies and CSHOs would result in no discrepancies between enforcement officer and employer on what the standard means. Companies could spend money on compliance, instead of citations and then compliance.
- Previously, OSHA established a standard that was based on the assumption that certain equipment was readily of available; however, the equipment was never developed because of poor economic incentives (the equipment certification process costs roughly $250,000). OSHA should consider this issue when developing the CD standard in order to avoid a similar error.
- Problems with housekeeping may have been oversimplified. Many innovative housekeeping alternatives are available to control dust, such as:
- Using oil additives to retain dust so the dust does not become airborne (prevents the formation of dust clouds).
- Pressurizing equipment to prevent dust from leaking into the workplace.
- Using water for wash-down.
- Identifying leaks and eliminating them (instead of using temporary patches).
- Adjusting equipment operations, such as running conveyer belts slower to prevent mechanical problems and dust generation.
- OSHA should focus on a risk and performance approach because of the complexities of the hazards and the different ways to mitigate and control dust (and should not develop a "one size fits all" standard).
- Companies that control dust will have better insurance rates, so products will potentially be cheaper for consumers. Everybody benefits.
- The reality is that consumers are not paying more for products just because the workers wear PPE. Companies need to institute engineering controls, such as ventilation. Companies have to find a way to give customers what they want at a price that they can afford.
- OSHA should adopt a different regulatory approach. During the first site visit to a business, OSHA should not assess fines for violations, but rather allow the business some time for compliance (i.e., allow a business an opportunity for compliance before enacting a punishment). This practice would provide a learning experience for small businesses, and benefit small businesses that otherwise would be forced out of business due to the cost of one citation.
- OSHA requested that the stakeholders provide OSHA with specific suggestions regarding the advantages of performance-based standards.
- The current OSHA consultation program prevents an employer from using its services if the employer has been cited. OSHA should make consultation mandatory if an employer is cited, as opposed to prohibiting it.
8.4 Hazard Mitigation—How do you determine where engineering and/or administrative controls are applied? Do you use a hazard analysis or other methods to make this determination?
- OSHA should consider a potential regulatory approach that would merge existing rules addressing similar hazards (e.g., explosive atmospheres, dust and vapor explosions, elements of product safety management), such as:
- The "ATEX Directive" that was developed to protect employees in areas with explosive atmospheres. The directive describes what equipment and work environment is allowed in an environment with an explosive atmosphere.
- The Chemical Safety Board (CSB) 2005 Hazard Identification document.
- Combustible dust is not included in the hazards of many of the general industry standards (e.g., housekeeping, PPE, hazard communication).
- OSHA needs to provide businesses with guidance and assistance on identifying a combustible dust risk.
- OSHA must determine what constitutes a combustible dust hazard prior to developing a regulation. OSHA needs to address how to identify a threshold for combustible dust.
- OSHA should consider contractor participation in the development of the standard.
- Employers and workers need to document and evaluate accidents, injuries, and near misses to identify commonalities.
- An NFPA technical committee is currently working to identify enforceable clear guidelines to develop a combustible dust hazard guidance document. The committee is comparing the differences between existing standards and their threshold requirements to develop an NFPA threshold requirement. NFPA is receiving considerable industry support for this project (e.g., Proctor and Gamble, Honeywell, Abbott Laboratories).
- New facilities or facilities undergoing major renovations should focus on engineering controls. Existing facilities should focus on administrative controls (e.g., operating procedures, housekeeping, preventive maintenance).
- For each facility, the balance between administrative controls and engineering controls varies, and OSHA should allow flexibility in the regulations to acknowledge the variability.
- OSHA should refer to the process safety management standard—a great model for hazard analysis.
- A performance-based approach may be problematic because of complexities associated with the incorporation of many standards by reference. Employers may need more straightforward guidelines.
- Documents on inherent safe design provide excellent examples of operation and administration practices. Inherent safe design is based on the concepts of minimizing the amount of hazardous material present, substituting with less hazardous materials, moderating hazards by reducing the strength of the effect, and simplifying processes by addressing hazards during the design phase rather than through retrofits. Facilities could use inherent safe design as a foundation to establish a hazard mitigation system that focuses on life safety and addresses administrative controls, PPE, etc.
9 Closing Remarks
OSHA representatives thanked the stakeholders for their participation. Ms. Dougherty reiterated that OSHA is planning additional stakeholder meetings in upcoming months. The first additional meeting will most likely be held in Atlanta in February, followed by another meeting in the Midwest/West in the spring. OSHA is also considering another meeting based in Washington, D.C. Ms. Dougherty reminded the stakeholders that the ANPR is still open, and encouraged the stakeholders to submit formal comments for consideration. Ms. Dougherty informed the stakeholders that next steps include starting the SBREFA process, and requested that the stakeholders contact OSHA if they would like to participate. Ms. Dougherty closed the afternoon session by requesting that stakeholders interested in volunteering for site visits contact OSHA. Ms. Dougherty stressed that volunteers would deal directly with a contractor, and would remain anonymous to OSHA.
* * * *