Managing Workplace Combustible Dust -- A Legal Perspective › assets › Conference...• NFPA 664 says clean up at 1/8” (over 5% floor or 1000 ft2) • NFPA 654, Appendix D says

www.khlaw.comWashington, D.C. ● Brussels ● San Francisco ● Shanghai

Lawrence P. Halprin, PartnerKeller and Heckman LLP

Washington, DC 20001202-434-4177

[email protected]

Managing Workplace Combustible Dust-- A Legal Perspective --

2010 PPSA Annual Safety and Health Conference

│ www.khlaw.com │ KELLER AND HECKMAN LLP Copyright © 20102

OVERVIEWOVERVIEW

Congressional ActivityNFPA Activity OSHA ActivityState ActivityClosing thoughts


CONGRESSCONGRESS

House -- HR 849 • Driven by:

– Imperial Sugar and other high profile tragic incidents

– CSB report on C.D.• 1980-2005: 281 incidents, 119 fatalities, 718 injured

5 fatalities/ year (priority? significant risk?) Focus: primary v. secondary explosions/fires

– Media– Frustration with Bush Admin.– Recognize OSHA is working on it


CONGRESS

Senate• No bill• Concerns reflected in Senator Isakson's

(R-GA) questions to David Michaels during confirmation process

Overall Concerns• Members have no apparent understanding

of issues• Appear to think NFPA stds. are the answer


NFPA Activity and Role

5 Primary NFPA C.D. Standards• NFPA 61 – food and agriculture• NFPA 484 - metals• NFPA 654 – general• NFPA 655 - sulfur• NFPA 664 – wood processing


NFPA 654 – General C.D. Standard

Stated Objectives• Life Safety: protect occupants not in the immediate proximity

of the ignition; minimize the propagation to adjacent properties and avoid injury to the public. Appears to be going in the direction of protecting everyone.

• Structural Integrity: maintain structural integrity for the time necessary to protect occupants not in the immediate proximity of the ignition.

• Mission Continuity: limit damage to levels acceptable to the owner/operator.

• Mitigation of Fire Spread and Explosions: prevent fires and explosions that can cause failure of adjacent compartments, properties, or storage; emergency life safety systems; or the facility's structural elements.


NFPA 654 – General C.D. Standard

Design Requirements• 4.1 Process and Facility Design.• 4.2 Process Hazard Analysis.• 4.3 Management of Change.• 4.4 Pneumatic Conveying System Design.

Approaches• Specification• Performance

Fire & Explosion Scenarios• Production upset or single equip failure


NFPA 654 – General C.D. StandardChapter 5 Performance-Based Design OptionChapter 6 Facility and Systems DesignChapter 7 Process EquipmentChapter 8 Fugitive Dust Control and HousekeepingChapter 9 Control of Ignition SourcesChapter 10 Fire Protection SystemsChapter 11 Training and ProceduresChapter 12 Inspection and Maintenance(red font for performance-based approach, all chapters other than Chapter 5 for specification approach)


NFPA 654 Activity

NFPA 654 (broadest scope NFPA C.D. rule)• Major Substantive Issues

– Definition of combustible dust?– Presumes ignition sources, constrains significant risk

determination– Trigger for housekeeping?

• Layer thickness over certain area v. mass• Entrainment factor: 25%? 100%? Based on elevation? TBD?

– Constraints on engineering controls• Approved devices • Recycled air

• Major Procedural Issues– Membership issues – lack of balance– Balloting issues


Proposed 2011 Update• Major revisions proposed• ROP: Public draft received numerous comments,

including extensive comments by AF&PA and GP• ROC: Committee approved revised draft outside

normal process• Challenges (NITNAMs) to committee-approved

standard filed by AF&PA and others• June 9: AF&PA motion to reject standard and

return it to the NFPA 654 Committee overwhelmingly approved at NFPA annual conference


NFPA Activity and OSHA

OSHA Initiative• Inconsistent NFPA standards such as

enclosureless dust collector• Contacted NFPA seeking consolidation of 5

NFPA committees under umbrella committee to produce one integrated standard

– NFPA polled committee chairs and others– Comment deadline to NFPA: June 11– Focus on Section 6(b)(8) of OSH Act and

Technology Transfer Act• Likely to make situation worse – with lack of

balance on umbrella committee


OSHA C.D. NEPPrimary purpose: reduce frequency & severity of C.D. explosions and fires through-• Enforcement • Education (leveraging effect)

Secondary purpose: determine what should go into OSHA C.D. standardIssues• Is material a C.D.? • Could the minimum ignition energy (MIE) be

present?• Could the conc. of the C.D. reach the minimum

explosion concentration (MEC)?


OSHA C.D. NEP

Scope• Primary and secondary explosions/fires• Engineering, work practice, training and PPE

measures • Programmed focus on certain SIC/NAICS codes• Unprogrammed application to all

Enforcement Tools • General Duty Clause – being used to require

retroactive eng. controls despite ANPRM and precedent of Grain Handling Standard

• Specific Standards


OSHA C.D. NEP

General Duty Clause Citations –frequently cited -- based on NFPA Stds

• Dust collectors inside buildings w/o explosion protection ( found at most inspected facilities)

• No deflagration isolation systems.• Rooms with excessive dust accumulations

lacked explosion venting • Elevated horizontal surfaces not minimized

to prevent dust accumulation.


OSHA C.D. NEP

General Duty Clause Citations – examples• Dust collection system did not maintain min.

velocity of at least 4500 ft/min to ensure transport.

• Material transport hoses/piping not conductive, bonded and grounded.

• Dust collection ductwork not metal.• Components of dust collection system made

of combustible materials.• Equipment (grinders, shakers, mixers and

ductwork) not maintained to minimize C.D. • Interior surfaces not designed to facilitate

cleaning and to minimize C.D. accumulations.


OSHA C.D. NEP

General Duty Clause Citations –examples

• Regular cleaning frequencies not established.

• Compressed air used to clean up C.D. accumulation in the presence of ignition sources.

• Dust collector exhausted into the work area without fire/explosion protection.

• Processing machinery exhaust not captured with dust collector or filter.

• Bulk material conveyor belts lacked bearing temperature, belt alignment, and vibration detection monitors


OSHA C.D. NEPCited OSHA Standards

• Housekeeping Standard, 1910.22. • Housekeeping in storage areas, 1910.176.• Housekeeping violations at coal-handling operations,

1910.269 • Ventilation Standard, 1910.94• Personal Protective Equipment (PPE), 1910.132• Electrical Safety, 1910.307 • Powered Industrial Trucks, 1910.178• Welding, cutting, and brazing, 1910.252• Warning Signs, 1910.145• Hazard communication, 1910.1200 (questionable)• Paper Mill and Saw Mill Standards 1910.261 & 1910.265Multi-employer issues and tort liability


OSHA C.D. NEP – Housekeeping Issue

OSHA Housekeeping Standard, 1910.22• How much dust is too much?• NEP says sample at 1/32”• NFPA 664 says clean up at 1/8” (over 5% floor or

1000 ft2)• NFPA 654, Appendix D says clean up at 1/32” (over

5% floor or 1000 ft2) for bulk density of 75 lb/ ft3 and adjust; OSHA is questioning the underlying analysis; NFPA tried to change eqn.

• NFPA 499 generally says need Class II electrical if over 1/8” (see 1910.307)


OSHA C.D. NEP – HazCom Issues

Hazard Communication Coverage Issue• What physical hazard?

– Probably not a “flammable solid”– Not “an explosive” v. not “explosive”

• US Add-on to GHS Update Will Cover C.D.The “Article” Exemption• Is a downstream C.D. created?• MSDS and label issues

Tort Law


Application of GDC to C.D. at Sites Covered by 1910.261 &1910.265

Pulp, Paper and Paperboard Std• C.D. provisions• Generally refer to NFPA 91-1961, Standard for the

Installation of Blower and Exhaust Systems for Dust, Stock and Vapor Removal or Conveying

Saw Mill Standard• C.D. provisions• Generally refer to NFPA 91-1961

Fed-OSHA’s apparent position –1910.261(a)(3)(ix) preempts use of GDC for C.D. issues at 1910.261 sites; and presumably 1910.265(c)(20) does at 1910.265 sites


Application of GDC to C.D. at Sites Covered by 1910.261 &1910.265

Mixture of “shoulds” and “shalls” - examplesSeparating or collecting equipment should be outside the building when conditions permit, and so located as to constitute a minimum hazard to adjacent structures. Explosion relief vents should be provided on all duct systems used for conveying materials which form an explosive mixture with air. Explosion vents shall have a cross sectional area not less than the cross sectional area of the duct vented. Vents should be provided where direction of flow is changed and at the maximum elevation in the system.OSHA C.D. rule will amend/revoke these (timing)


Is IIPP Unlawful Attempt to Amend GDC and Cover Combustible Dust?

Fast-track OSHA initiativeComponents• Management duties• Employee participation • Hazard identification and assessment• Hazard prevention and control• Education and training• Program evaluation and improvement


IIPP Rule Would Require Audit System

OSHA’S Final Policy Concerning the OSHA’S Treatment of VoluntaryEmployer Safety and Health Self-Audits, 07/28/2000, 65 FR 46498-46503 - BECOMES IRRELEVANT


OSHA C.D. ANPRM

ANPRM issued: 10.21.2009Impact• Responsible Step• Demonstrated need to proceed carefully• Potential Impact on NEP• Brings grain industry and grain industry

standard, 1910.272, into consideration3 Public meetings: 12/2009 – 4/2010• AF&PA delegation participated


OSHA C.D. ANPRM

Initial Comments: due 1.19.2010• AF&PA filed extensive comments

Open invitation for further inputWeb chat: June 28, 2010� Scope.� Balance between performance and specification based requirements.� Economic impacts.� Definitions.


OSHA C.D. ANPRM -- ISSUES

Scope:• Definition of C.D.• Impact of/on existing standards (1910.261,

1910.265, grain & others)• Coverage (facilities/processes)

– All v. higher risk industrial operations– Non-industrial operations: restaurants,

institutional facilities• Balancing risk and compliance costs

– Significant risk– Primary v. secondary explosion/fire


OSHA C.D. ANPRM -- ISSUES

• Specification v. performance based approach

• Controls– Engineering: prospective, retroactive (phase-in

period)– Work practices – housekeeping trigger– Hierarchy of controls– PPE?

• Use of NFPA Standards


OSHA C.D. Rulemaking

Potential Risks to Industry• NFPA will develop a single, integrated overly

conservative and impractical C.D. standard • OSHA will essentially propose and adopt that

impractical and overly conservative std• Industry will sit back and wait for OSHA to

issue proposal by which time input would be too late to have effective impact

• Practical performance-based approach will not be available except through variance (impractical) or, on a limited basis, under a PSM model


OSHA C.D. Rulemaking

Suggested Industry Strategy• Pursue a practical, cost-effective, risk-based,

performance-based approach to C.D.• Identify and enlist people with practical expertise

to develop technical and economic information specific to the industry.

• The information would:– Validate that Approach will provide a safe workplace.– Demonstrate that compliance with NFPA 654 is not

necessary. • Coordinate with trade groups for other industries• Meet with and educate OSHA technical and

financial analysis staff (and its contractors) on the technical and economic issues and on the validity of this Approach.


Deciding What to do in the Interim –Factors to Weigh

Unclear whether OSHA standard will require retroactive controls. Can get a better sense by meeting with the agency with something to offer.Is what we are currently doing consistent with our corporate policy on workplace safety?• What are we relying on to support that conclusion?• Empirical evidence? How many years of data is needed?

Expert analysis? • How do we distinguish fire and explosion risks?

Given the current regulatory environment, the absence of an explosion event is not likely to be adequate for OSHA.OSHA has used direct final rules to eliminate unenforceable (should) standards.


Deciding What to do in the Interim –Factors to Weigh

Most state laws incorporate the NFPA C.D. Standards through the International Building Code, which may be preempted or part of a state plan.Tort Law Still in PlaceThe potential impact of a fast-tracked OSHA Injury and Illness Prevention Program Rule –likely to be proposed and finalized before a C.D. rule, which will cover C.D. (and ergo, workplace violence, etc.)


Suggested Interim Actions

The apparent partial “shield” against the General Duty Clause provided by 1910.261 and 1910.265 should be viewed as an opportunity to diligently investigate the C.D. issue. Diligent investigation includes finding an expert consultant who has the expertise to make an independent risk assessment and not simply rely on the NFPA standards.Ensure you have a sound employee training and housekeeping program in place for C.D.If you are selling products intended to be run through a converting machine, reconsider whether you should be relying on the “article” exemption.


Unique State Combustible Dust RulesUnique State Combustible Dust Rules

Georgia• Driven by Imperial Sugar Tragedy• Effective March 9, 2010• Two rules

– Fire Safety: applicable to all– C.D. Rule: limited to SICs in OSHAC.D. NEP appendix

• Coverage: all operations involving mfg, processing, and/or handling of “combustible particulate solids” and not just “combustible dust”


Unique State Combustible Dust RulesUnique State Combustible Dust Rules

• Requirements: – Incorporates numerous NFPA standards, e.g.,

NFPA 654– Additional Programmatic/PSM Elements– Registration

• Designated safety officer– Evacuation drills/reports– Prepare/submit monthly management of

change reports to state


State Plan C.D. Rules§5174. Combustible Dusts--General. (From old version

of NFPA 61; no comb. dust NEP)Limit C.D. conc. to 25% LEL: until all sources of ignition are controlled.Control Ignition SourcesBonding and Continuity requirementsHousekeeping: clean as often as necessary to prevent accumulation of dust which may present a fire or explosion hazard. Requires pneumatic or magnetic separators in grinding, shredding, or pulverizing equipment. Explosion dissipation requirements: generally does not permit indoor dust collectors to be vented


Conclusion

Combustible dust is currently subject to legal requirements imposed by• OSHA GDC and standards (Fed and state)• Tort law• Contract law

OSHA C.D. Standard appears inevitableOSHA IIPP Rule should be a huge battle …Industry needs to expand voice on NFPA committees and be proactive with OSHA to avoid overly burdensome and expensive OSHA std. and bad case law.

www.khlaw.comWashington, D.C. ● Brussels ● San Francisco ● Shanghai

Lawrence P. Halprin, PartnerKeller and Heckman LLP

1001 G Street, N.W.Washington, DC 20001

[email protected]

Thank you

Documents

Managing Workplace Combustible Dust -- A Legal Perspective › assets › Conference...• NFPA 664 says clean up at 1/8” (over 5% floor or 1000 ft2) • NFPA 654, Appendix D says