Thursday, December 24, 2009

NIOSH Absent: Combustible Dust Rulemaking Agenda

Reflecting on the recent OSHA Combustible Dust ANPRM stakeholder meeting that was held in Washington, D.C on December 14, 2009 it is becoming even more apparent through researching the background of the OSHA Grain Facility Standard that many key stakeholders are not participating in the rulemaking process. Several of the potential participants that were absent would be academia, state government, insurance industry, fire protection officials, and National Institute for Occupational Safety and Health (NIOSH).

NIOSH has the most extensive background than any stakeholder in understanding the complexities of combustible dust explosions through the extensive research on the subject at it's Pittsburg Research Laboratory in addition to their participation in the development of the OSHA Grain Facility Standard.

Occupational Safety and Health Act of 1970 in addition to creating the Occupational Safety and Health Administration (OSHA) also created a sister agency the National Institute for Occupational Safety and Health (NIOSH) in the Department of Health and Human Services. Congress has directed through the OSH Act that the Secretary of Labor, in consultation with the Secretary of Health and Human Services, shall:

(1) provide for the establishment and supervision of programs for the education and training of employers and employees in the recognition, avoidance, and prevention of unsafe or unhealthful working conditions in employments covered by this Act, and

(2) consult with and advise employers and employees, and organizations representing employers and employees as to effective means of preventing occupational injuries and illnesses.

National Institute for Occupational Safety and Health (NIOSH)
Now the big question is why hasn't the Secretary of Labor sought consultation with NIOSH on combustible dust explosions? Especially when the Pittsburgh Research Laboratory, formed as the U.S. Bureau of Mines, has been conducting studies and research on dust explosions for over a 100 years. Additionally, the Department of Agriculture's Bureau of Chemistry also conducted studies on dust explosions during this period, whose work became the foundation for the NFPA Combustible Dust standards. In the past six years the only consultation that DOL, through Occupational Safety and Health Administration (OSHA) has sought has been with the Chemical Safety Board combustible dust hazard recommendations.

This is a reactive position with the utilization of CSB as the sole governmental agency provider of recommendations in the combustible dust rulemaking process following recent catastrophic dust explosions. A more proactive position would be to utilize the excellent resources of NIOSH, an agency that was actively engaged in the development of the OSHA Grain Handling Facilities Standard three decades ago.

For example, in the preamble for the Grain Handling Facilities Final Rule, NIOSH stated, "the danger of fires and explosions is "ever present in the industry because of the physical characteristics of organic dust that is generated while handling and processing grain" (52 FR 49595). Prior to the Final Rule NIOSH, OSHA, and the Department of Agriculture contracted with National Materials Advisory Board, which functions under the auspices of the National Research Council (NRC), the operational arm of the National Academies, in conducting extensive dust hazard studies following the series of catastrophic grain facility explosions in 1977.

NIOSH's Mining Safety and Health Research Division
The National Academy of Sciences completed four reports between 1980 and 1984: Investigation of Grain Elevator Explosions; Prevention of Grain Elevator and Mill Explosions; Pneumatic Dust Control in Elevators; and Guidelines for the Investigation of Grain Dust Explosions. The data on ignition sensitivity and explosion severity in these reports was compiled from the U.S. Bureau of Mines 1961 research on combustible dust explosions. Unfortunately in 1995, Congress shutdown the U.S Bureau of Mines and transferred it's activities to other Federal agencies.

Much of the background information that stakeholders utilize today in the identification, evaluation, and control of combustible dust hazards originated from the in-depth research that the
U.S. Bureau of Mines conducted at the Pittsburgh Research Center. NIOSH's Mining Safety and Health Research Division collaborative efforts with the Mine Safety Heath Administration (MSHA) has effectively eliminated mining fatalities, injuries, and illnesses through research and prevention. Since 1910, fatalities decreased from more than 3,000 per year to 34 in 2009.

Additionally, Congress in Section 20 of OSH Act has stated concerning Research and Related Activities (a) (1) The Secretary of Health and Human Services, after consultation with the Secretary and with other appropriate Federal departments or agencies, shall conduct (directly or by grants or contracts) research, experiments, and demonstrations relating to occupational safety and health, including studies of psychological factors involved, and relating to innovative methods, techniques, and approaches for dealing with occupational safety and health problems.

So where is NIOSH now and why hasn't the agency been involved in seeking methods and approaches in assisting stakeholders in developing layers of protection concerning workplace combustible dust related fire and explosion hazards? It makes no sense to reinvent the wheel when this governmental agency already has over a century of expertise on this complex topic.

NIOSH Intramural Programs
Already NIOSH has a superior infrastructure with it's intramural programs that could possibly address combustible dust hazards in the workplace. For instance, the Education and Information Division (EID) develops and transfers information and provides recommendations to foster prevention of occupational injuries, Then there is the Division of Applied Research and Technology (DART), which provides national and international leadership in research focused on the prevention of occupational illness and injury by developing and evaluating:

  • Methods and tools to identify and quantify workplace hazards (chemical, physical, organizational)
  • Strategies and technologies to control exposures to workplace hazards.

Finally, the National Personal Protective Technology Laboratory would be an excellent NIOSH resource in providing useful information to OSHA concerning the donning of Flame Resistant Clothing/PPE in the workplace where combustible dust flash fire hazards are present.

National Advisory Committee on Occupational Safety and Health (NACOSH
It appears from what currently is occurring in contrast to what Congress intended in the OSH Act is not being fully pursued in addressing workplace fatalities, injuries, and illnesses in a comprehensive manner.. For example, in Section 7 of the Act, Advisory Committees; Administration:

(a) (1) There is hereby established a National Advisory Committee on Occupational Safety and Health consisting of twelve members appointed by the Secretary, four of whom are to be designated by the Secretary of Health and Human Services, without regard to the provisions of title 5, United States Code, governing appointments in the competitive service, and composed of representatives of management, labor, occupational safety and occupational health professions, and of the public. The Secretary shall designate one of the public members as Chairman. The members shall be selected upon the basis of their experience and competence in the field of occupational safety and health.

(2) The Committee shall advise, consult with, and make recommendations to the Secretary and the Secretary of Health and Human Services on matters relating to the administration of the Act.

Reviewing the Meeting Agendas and Minutes of previous National Advisory Committee on Occupational Safety and Health (NACOSH) meetings it is a bit unusual that there has not been any discussion on combustible dust workplace fire and explosion hazards. Combustible dust explosions was a big issue back in 2003 following the rapid succession of explosions at three different manufacturing facilities.

There were several NACOSH meetings in 2003 and several more since then yet it appears that the combustible dust hazards was not a main topic amongst stakeholders. So I guess it should not be so much of a surprise that proportionate stakeholder participation is lacking at the recent OSHA ComDust ANPRM meeting.

Status Report ComDust NEP
There is a diverse conflicting aspect between OSHA and NIOSH, where one agency believes strongly in enforcement and citation activities rather than education, research, and outreach. This aspect was most evident in the October 2009 release of the status report on the Combustible Dust National Emphasis Program. From October 2007 through June 2009 over 1,000 inspection where conducted that tallied over 2,200 combustible dust citations.

The main problem was that the majority of facilities that had been inspected previously prior to the Dust NEP had not received combustible dust citations. In contrast, after the OSHA inspectors received their recent specialized combustible dust NEP training and began inspecting facilities, the tally of citations skyrocketed catching the manufacturing sector off-guard. An educational approach for businesses prior to citation activities would of been more appropiate. This is where OSHA collaboration with NIOSH would of helped.

NIOSH activity in regards to forming working proactive alliances with business concerning workplace health and safety is in conflict with OSHA's strong enforcement activities. Many small businesses are not even aware of the assistance that NIOSH offers concerning research, surveillance, prevention/intervention, information, and training. A visit to OSHA's website main page has no mention of
the National Institute for Occupational Safety and Health (NIOSH).

National Occupational Research Agenda
An innovative concept that NIOSH is pursuing concerns their outreach to eight industrial sectors which includes manufacturing in addition to 24 cross-sector programs organized around adverse health outcomes, statutory programs and global efforts. NIOSH fulfills their mission goals through developing practical solutions, research, partnerships, and research to practice (r2p).

Just recently the comment period ended for the Manufacturing sector National Occupational Research Agenda (NORA) partnership program to stimulate innovative research and improved workplace practices. Combustible dust hazards would be an appropriate topic to add to NORA manufacturing sector content. Where in Strategic Goal #10 Catastrophic Incidents: Reduce the number of catastrophic incidents (e.g., explosions, chemical accidents, or building structural failures) in the manufacturing sector.

Strong enforcement and citation activity is a great goal to pursue in minimizing fatalities and injuries in the workplace. But if the facility owners and managers don't have the educational resources to understand the complexities of controlling combustible dust hazards, then all that will result will be just be chaos. The impact of regulatory costs for the the proposed combustible dust regulation has not even appeared yet on the national horizon.

U.S. Small Business Administration

For instance the U.S. Small Business Administration, Office of Advocacy, “Statistics of U.S. Businesses: Firm Size Data," illustrated that nearly 75% of manufacturing sector firms are small businesses, employing less than 20 workers. OSHA regulations account for 53% of the cost of all workplace regulations, according to Joseph M. Johnson (2005), "A Review and Synthesis of the Cost of Workplace Regulations," in Cross-Border Human Resources, Labor and Employment Issues. Kluwer Law International: Netherlands. So will small business be financially able to immediately implement best engineering abatement controls?

These are some tough questions to answer during the nation's worst recession in over a half a century with businesses shutting down throughout the country on a daily basis. The most economical aspect in addressing combustible dust hazards would be education and outreach. Where was the OSHA Directorate of Cooperative and State Programs (DCSP) in addtion to the Directorate of Training and Education (DTE) during the recent OSHA Combustible Dust ANPRM Stakeholder Meeting? It's troubling that there is no OSHA Outreach Training Programs for combustible dust yet OSHA inspectors receive specialized training on combustible dust so as to write more citations. Where is the balance for the business sector?

With the huge chasm of different approaches that OSHA and NIOSH currently has in addressing complex workplace combustible dust fire and explosion hazards there will be a tough hill to climb in assisting the nation's manufacturing sector in prevention and mitigation strategies. A single page on Combustible Dust that OSHA provides online with a safety alert and poster is not going to provide and reach the majority stakeholders , consisting of small businesses, with the vast amount of information that is direly needed. Maybe a visit across the Mall to E Street at Patriot Plaza would be in order so OSHA and NIOSH can marshal their resources effectively as the Congress outlined in the OSH Act?

Coal-Dust Explosion Tests-USBM 1913-1918
Prevention of Grain Elevator and Mill Explosions 1982
Conference Grain Dust Fire & Explosions-1920
Preventing Dust Explosions-Scientific American 1921
Grain Dust Explosions Investigations-1918

Here is some additional background info where the subject of NIOSH reorganization that was more in line with the Congressional mandates of the OSH Act, that was brought up in 2004-2005.

The Future of NIOSH A View from Inside

Change at CDC Draws Protest

Effective Reorganization for NIOSH-September 2004 -
CDC Proposes Staff Cuts For NIOSH


Wil Ferch said...


Perhaps the problem is defined at some operational and oversight level going much further than your very valid question...and it can be asked this way--->

Do we have simply too many and too fragmented "agencies" ( By title) that we can't even keep straight and know who has jurisdiction over what piece ?

Twofold problem....not knowing all the agencies... AND, not knowing their influence "heirarchy".

Plus this--> they ALL may be federal agancies and the list and confusion simply expands if we fold-in State agencies and foreign national equivalents.

Summary----> there is not a single (or 2) major oversight and regulatory agency and this in itself causes confusion and infigthing on both sides of the issue, the oversight agency and the industry being viewed.

Jeffrey C. Nichols said...

Excellent research and thought provoking article John. Thanks for bringing this topic to light. I wonder how NIOSH and OSHA would respond, if they were so inclined.


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