OSHA Hazard Communication Standard is Broken

With the OSHA combustible dust regulation Advance Noticed of Proposed Rulemaking (ANPRM) due to be published in the Federal Register any day now,(tomorrow?) many stakeholders are eager to provide comments in the rulemaking process. Initially, immediately after the dust explosion at Imperial Sugar Refinery in Port Wentworth, Georgia many were ready to place blame including myself. But after a cooling down period of a few weeks analyzing the situation it became readily apparent the combustible dust issue was a very complex topic.

It was the catastrophic Imperial Sugar explosion that galvanized Congress, the media, OSHA, and many other stakeholders into action. Sort of like the 9/11 of occupational health and safety. But instead of a threat from outside, the threat upon the nation’s manufacturing workforce was inside with insidious combustible dust.

The Chemical Safety Board became a major player in the accident investigation. Two years earlier, the CSB an independent governmental agency completed an informative Dust Hazard Study investigation in 2006 on combustible dust related fires and explosions in the industrial sector, following a series of dust explosions in 2003.

Many of the key recommendations that CSB presented in the 118 page report have already moved forward. Such as combustible dust hazard awareness training at the OSHA Training Institute (OTI), a Combustible Dust NEP, communicate to the United Nations the need to amend the Globally Harmonized System (GHS) to address combustible dust hazards, and issue a combustible dust standard based on the NFPA combustible dust standards. The most important recommendation and most misunderstood and overlooked is to revise the OSHA Hazard Communication Standard (HCS) (1910.1200) in the prevention and mitigation of fire and explosion hazards that combustible dust presents in the nations’ workplace.

Material Safety Data Sheets
Hazard communication through the utilization of Material Safety Data Sheets (MSDS) in providing the workforce with vital information on the ignition sensitivity and explosion severity of combustible dust is crucial in managing the risk. Without specific information on the fire and explosion physical properties of combustible dust, workers and plant management are at risk in inadvertently providing an ignition source in completing the fire triangle or explosion pentagon.

During the research that CSB conducted for the Dust Hazard Study they discovered after reviewing 140 MSDS’s across a wide spectrum of industry that none of the data sheets had the physical properties of ignition sensitivity and explosion severity (physical data parameters, such as Kst MIE, MEC, and MIT). Oh really? Well that should not come as a big surprise since the raw product manufacturers who prepares the MSDS’s usually have no idea of the specific process conditions or situations that reconstitute their raw product during the manufacturing process into final products that also generates combustible (explosive) dust.

Pertinent Legal Authority
In the recent OSHA Hazard Communication Proposed Rule concerning global harmonization there is quite an interesting discourse on the subject in the section VI. Pertinent Legal Authority.

“chemical manufacturers and importers tend to have greater knowledge and scientific expertise with respect to the composition of the chemicals they make or import. See 48 FR 53306, 53322. Therefore, they are usually in the best position to assess the inherent hazards associated with them.”

How can upstream raw product manufacturers in the life-cycle be in a better position to know the particle size distribution, particle size, moisture content, etc in determining the explosion severity and ignition sensitivity in managing the risk? But then immediately after that position statement a conflicting view.

“However, it is the downstream users and their employees who tend to have the best information about the means and methods of exposure, and are therefore usually in the best position to determine the risk arising from the use of the chemical in their workplaces. See 48 FR 53295–96, 53307; 59 FR 6132”

So which is it? The raw product manufacturers or the downstream users in the best position in providing the essential physical properties of probability of occurrence and severity of consequence in the MSDS’s? Now it all makes sense that 80% of combustible dust incidents that occurred in 2008, according to media accounts were combustible dust related fires. The majority of downstream users had no idea of the ignition sensitivity and they still don’t.

Warm and Fuzzy Feeling
So an OSHA combustible dust standard is going to make things all warm and fuzzy? A quick fix? Sure it’s much easier to implement a regulation; after all we don’t have enough regulations inundating the business community already. The steeper road to follow would be to fix the broken OSHA Hazard Communication Standard, the heart of the problem in identifying, evaluating, and communicating the risk.

It’s troubling that the OSHA combustible dust standard rulemaking process is based on the Chemical Safety Board’s 2006 Dust Hazard investigation, which does not provide policy makers with all the facts. Another excerpt from VI. Pertinent Legal Authority, states:

Development of a combustible dust standard under the OSH Act should be based upon research, demonstrations, experiments, and such other information as may be appropriate. In addition to the attainment of the highest degree of health and safety protection for the employee, other considerations shall be the latest available scientific data in the field, the feasibility of standards, and experience gained under this and other health and safety laws. Whenever practicable, the standard promulgated shall be expressed in terms of objective criteria and of the performance desired. 29 U.S.C. 655(b)(5).

The data from research that the CSB presented to OSHA is incomplete and does not take into account a full risk analysis of probability of occurrence and severity of consequence throughout the manufacturing sector For example, up to the week prior to the March 12, 2008 congressional committee hearing on combustible dust, over a dozen combustible dust related fires and explosions occurred in the four weeks immediately after the February 7, 2008, Imperial Sugar dust explosion. Yet the CSB Dust Hazard Study stated in the incident data, which they provided to OSHA, Congress, media, and the public, an average of 12 combustible dust incidents annually occurred from 1980-2005, or 281 total.

OSHA ComDust Enforcement Activity
It seems every other week; we read another media account of OSHA combustible dust enforcement and inspections activities that includes costly citations that an employer received due to combustible dust hazards. So will an OSHA combustible dust standard make things better and remedy the significant risk with even more combustible dust citations? Again referring to the proposed HAZCOM rule section in the Federal Register: VI. Pertinent Legal Authority

Where, however, OSHA is confronted with two feasible methods of reducing risk to the appropriate level, OSHA must chose the cheaper method. Id. at 513 n.32; International Union, UAW v. OSHA, 37 F.3d 665, 668 (D.C. Cir. 1994).

Conclusion
Addressing the deficiencies in the current HAZCOM standard would be more appropriate in addition to more feasible. Doesn’t make sense to put the cart before the horse when the hazards have yet to acknowledged in the MSDS’s. It’s a revised OSHA Hazard Communication Standard that is needed not a combustible dust standard. No one was demanding an OSHA flammable gas, liquid, and vapor standard after the nearly two dozen such incidents that CSB has investigated since 2003.

Resources
Flammable Liquid and Gas Fires/Explosions since 2003-CSB