Combustible Dust Covered by OSHA’s HazCom Standard, Court Rules

By Roy Maurer Oct 31, 2014
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Combustible dust hazards must be addressed on labels and safety data sheets and in training as required by the Occupational Safety and Health Administration (OSHA) hazard communication standard, a federal appeals court ruled.

The U.S. Court of Appeals for the D.C. Circuit upheld the agency’s hazard communication rule covering combustible dust Oct. 24, 2014.

The three-judge panel denied a petition from industry groups that argued OSHA failed to give adequate notice that combustible dust would be included in the rule. The petitioners, including the National Oilseed Processors Association and the American Feed Industry Association, also argued that combustible dust regulations should be covered under a pending rulemaking on the subject rather than in the hazard communication standard because there is no statutory definition yet for what constitutes combustible dust.

Background

In 2012, OSHA revised its hazard communication regulations, which require employers to develop, implement and maintain a written hazard communication program informing employees about hazardous chemicals present in the workplace. Employers are obligated to supply labels and safety data sheets, and train employees on the detection of hazardous chemical releases, safe handling methods and emergency procedures. The revisions were made to harmonize the requirements with a uniform international system OSHA had developed with the United Nations.

The Globally Harmonized System (GHS), unlike OSHA’s hazard communication standard, designates hazard classes and categories of specific hazards within most hazard classes, and provides standardized labels and safety data sheet formats for employers to use for each class and category of hazard. Chemical manufacturers and importers must evaluate and classify each chemical they produce or import to determine whether it is a hazardous chemical.

They must also ensure that hazardous chemicals are labeled for downstream users and create safety data sheets that explain the hazard and applicable safety procedures in detail.

OSHA included combustible dust—including dust from grain—as a hazardous chemical in the final rule, without defining it, pointing to ongoing OSHA rulemaking for not doing so and noting that it had “already provided considerable guidance on the nature and definition of combustible dust in a variety of materials.”

The inclusion of combustible dust in the hazard communication revisions led to critics charging that OSHA engaged in backdoor rulemaking while a proposed standard on combustible dust was ongoing. The advanced notice did not in fact mention that combustible dust would be regulated as a hazardous chemical, but instead treated as an “unclassified hazard.”

OSHA issued guidance in December 2013 advising that regulated parties should classify materials as combustible dust using any past experience of explosions involving those materials, results of published test data on similar materials or available information about particle size to determine the combustible dust hazard.

On March 4, 2014, OSHA provided clarifications on creating a hazard statement, additional statements on the safety data sheet, and labels on shipping containers and in the workplace for combustible dust.

Court Sides with OSHA

The appeals court refuted the petitioners’ contention that they were not provided notice of an opportunity to comment on the possible inclusion of combustible dust during the hazard communication rule revisions, stating that combustible dust was addressed in OSHA’s 2009 notice of proposed rulemaking.

Petitioners argued that the 2012 final rule in which combustible dust had been reclassified from “unclassified” to “chemical hazard” was not a “logical outgrowth” of the 2009 proposed rule, which they said was “an unforeseeable change of course.” The court answered that “both the proposed and final rules subjected combustible dust to the hazard communication standard requirements for labeling, use of safety data sheets, and training.”

The court also refuted the contention that OSHA should regulate combustible dust under the pending combustible dust rulemaking instead of the hazard communication standard because of a lack of a “clear, consistent definition of combustible dust.”

Even though OSHA concedes that it has not adopted a definition for combustible dust, the agency says that it has already provided guidance on the hazard, including the March 2008 Combustible Dust National Emphasis Program Directive, which “includes an operative definition.” OSHA also noted that a number of voluntary consensus standards exist, which provide further guidance.

The court agreed, stating that “OSHA neither failed to provide any definition of nor adopted a multiplicity of wide-ranging approaches to classifying combustible dust.”

In the court’s view, there is a general consensus on what constitutes combustible dust—“particles that may explode under certain conditions”—and OSHA could “reasonably conclude that it was unnecessary to articulate a single, uniform definition in the final rule.”

Roy Maurer is an online editor/manager for SHRM.

Follow him @SHRMRoy

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