I'd like to welcome guest contributor Jesse Anderson to the ComDust site. Jesse provides an interesting and informative post from the business perspective. I welcome additional guest contributors that can provide insight in regards to business concerns with combustible dust regulatory issues.
After reading the oshaaboveground.blogspot.com post about the general duty clause I was inspired to share some thoughts from the perspective of a business working through general duty clause citations in regards to COMDUST.
I feel that this OSHA insider explanation of Section 5(a)(1) of the OSH Act is a prime example of the immature, purely prescriptive, failing nature of OSHA's approach toward COMDUST.
Immature, because it admits that the standard is vague and subjective. How can you apply this simple rationale to something as scientific, complex, and possibly deadly as COMDUST. The author uses the example:
"I'm driving along and I see people working on a scaffold at a height over 15 feet, and the scaffold has no rails. I am, of course, going to stop and conduct an inspection. "If OSHA personnel think this example is adequate in describing the amount of insight that goes into assessing the hazards of COMDUST they are gravely mistaken. The science behind this National Emphasis Program is out there but it's currently hiding in the minds of engineers and scientists; not the minds of OSHA field agents .
Purely prescriptive, because it only addresses the symptoms and not a successful cure. In our case OSHA prescribed that we stop manufacturing our product as a method of abatement. Can you believe that? They're answer to the problem is that we not do business. OSHA would rather see employees "Out of Work" than "Safe at Work". What will be left if we pay no mind to the word "Occupation" in the acronym "OSHA". My answer: a very safe increasing amount of unemployed
Failing, because it is. The NEP report proves it:
Our Region V OSHA Assistant Area Director said that the general duty clause recognizes hazards that:
May be recognized by the industry
An unsuccessful 20% compliance says they're not recognized by the industry. In fact, our company wasn't even fortunate enough to be recognized by OSHA as one of 30,000 known dust producers. Which means that we didn't get a warning letter from the DOL as much of our competitors did. What about the 15 states that refused the National Emphasis Program on COMDUST? An entire state can simply refuse recognition of a federally mandated emphasis on COMDUST awareness but one business can't miss a single topic for fear of $42,000 fines.
May be recognized by other consensus standards
This is a cop-out. The NFPA can't fine us for half a million dollars, but OSHA can. Can anyone guess how many words there are in OSHA Standard Number 1910 on General Industry? Now we have to follow the hundreds of thousands of letters on the pages of ANSI, ASME, NFPA, etc. If it is a consensus then why are so many in industry amiss of the information and if it is all so "standard" then why is it taking so long for OSHA to write it? "Consensus Standard" is a spin on words to make small business feel stupid.
May be recognized by common sense
Please tell me who, through common sense, understands the science involved in calculating CFM and dust microns. Who here understands fire deflagration and suppression: not the deflagration and suppression experts; that's who. They are coming to our plant to try and better understand our process because it is unique. I didn't say there's not an answer. I just said it is not "common sense".
In fact the U.S. Chemical Safety and Hazard Investigation Board said:
"Many industry and safety professionals lack awareness of combustible dust hazards. The widely recognized standards of good engineering practice in the NFPA's voluntary consensus standards were not being followed in many facilities. State and local fire codes were ineffective as a viable mechanism to reduce dust explosion risks in general industry nationwide."
They also said:
"The consensus standards related to combustible dust are large, complex, numerous, and interrelated, which make it difficult for employers to comply with them."
Sorry OSHA; it looks like we're not the only ones struggling with this.
My problem is not that OSHA passed judgment on our company (after all, that is their job). My problem is that they don't seem to care about actually helping small business mitigate COMDUST hazards. Instead they fined my employer of 40 employees $750, 000 in the past 12 months. That's $18,750 per employee and only half as much as we have spent in the last year on OSHA compliance re-tooling.
If I could cite OSHA with a Small Business General Duty Clause it would be that they have the general duty to ensure that small businesses have the time and resources to provide a safe environment where employees can earn a living and be able to go home to food in their fridge and benefits for their families. We've already laid employees off. Some of them have even called back because their unemployment has run out. We have nothing for them with $500,00 in fines looming.