On July 25, 2013, the Chemical Safety & Hazard Investigation Board (CSB) held an open meeting where it designated a potential Occupational Safety & Health Administration (OSHA) general industry standard for combustible dust as the Board’s first “Most Wanted Chemical Safety Improvement.” This unprecedented move followed testimony by OSHA and stakeholders and featured unusually strong criticism by a fellow member of the Obama Administration directed towards OSHA’s failure to advance the regulatory process for a combustible dust standard first initiated by OSHA in 2009. The Board also officially deemed four recommendations regarding combustible dust as “Open-Unacceptable Response,” which signals that the Board considers OSHA’s failure to adopt the recommendations as “unacceptable.”
The CSB is an independent federal agency charged with investigating industrial chemical accidents or potentially hazardous conditions. The CSB’s goal is to determine the “root cause” of such accidents or conditions, and, where appropriate, to provide regulatory agencies and industry with specific recommendations to improve health and safety practices at fixed industrial facilities. Through its investigations and recommendations, the CSB “audits” the efficacy of regulatory and enforcement efforts undertaken by agencies like OSHA and the U.S. Environmental Protection Agency, among others. CSB recommendations, which are not mandatory, are often incorporated into revised regulations or workplace standards, but the CSB must sometimes battle to gain traction with the recipients of its recommendations. In fact, the recommendations are often ignored or not addressed by the regulators with jurisdiction to act on those recommendations.
If the July CSB meeting is any indication, the Board is attempting to overcome such institutional challenges as Washington’s desire to prioritize the safety of chemical plants, refineries, and other high-risk facilities such as fertilizer plants increases. The CSB meeting could therefore represent a turning point if OSHA does move forward in the Combustible Dust rulemaking process.
The CSB recommendations call for OSHA to implement a general industry standard based on the current National Fire Protection Association (NFPA) dust explosion standards, and to specifically include hazard assessment, engineering control, housekeeping, building design, explosion protection, operating procedures, and worker training requirements. Each recommendation flows from investigations into several accidents related to combustible dust over the past decade where, collectively, thirty-three workers lost their lives.
Many believed that the CSB recommendations would quickly gain traction during President Obama’s First Term. Indeed, on October 21, 2009, OSHA commenced the regulatory process to address the combustible dust hazard issue by publishing an Advance Notice of Proposed Rulemaking (ANPR). See Combustible Dust, 74 Fed. Reg. 54,334 (Oct. 21, 2009) (to be codified at 29 C.F.R. pt. 1910). Yet since that time, OSHA has failed to advance the ball. The next step toward development of proposed regulations is review by the Small Business Regulatory Enforcement Fairness Act Panel (SBREFA), a review that could potentially occur as early as October 2013 according to the agency’s most recent Semi-Annual Regulatory Agenda, followed by publication of a Notice of Proposed Rulemaking (NPRM) sometime afterward. Still, six years have passed since the first combustible dust recommendation was issued, and as the July 25th Board meeting reveals, the CSB is frustrated with OSHA’s perceived lack of responsiveness.
An OSHA combustible dust standard could impose significant repercussions for regulated industry. The agency itself estimates that a standard would likely impact a wide range of industries, including everything from agriculture, animal food manufacturing, and grain handling to heavy mechanized and specialty industries, such as pesticide manufacturing, pharmaceutical manufacturing, and coal handling and processing. Collectively, OSHA estimates that businesses associated with these industries support upwards of 400,000 facilities that employ roughly 16 million people.
Consequently, even though the combustible dust rulemaking has remained in a virtual holding pattern for the last five years, the CSB meeting results suggest that the rulemaking could resume in the near future – potentially as early as this fall if a SBREFA panel is convened. The next step would be for OSHA to publish a combustible dust NPRM that will detail any proposed regulations, and permit stakeholders an opportunity to submit comments. It is not too early to begin thinking about how combustible dust regulations might take shape, and how positions for or against certain regulatory probabilities could be argued. Stakeholders who participate in the combustible dust rulemaking process will have a chance to ensure that regulations are crafted fairly. Furthermore, the CSB’s vote to maintain the combustible dust recommendations as “open” but still “unacceptable” means that the Board will continue to entertain comments from the public regarding the dust recommendations.
Please contact us to learn more about the CSB meeting’s potential impact on OSHA’s regulatory process for the anticipated combustible dust rulemaking, and how participating in the respective comment periods might be helpful for your business.