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OSHA Clarifies Enforcement Guidance on Combustible Dust

The Occupational Safety and Health Administration, responding to a request of the National Forest and Paper Association, has updated its compliance guidance on how inspectors are to evaluate accumulated levels of low bulk-density combustible dusts for enforcement purposes. The guidance was released by OSHA on May 22.

The Association asked OSHA to explain to the agency’s inspectors that they should consider the unique characteristics of a dust ‒ such as its bulk density ‒ instead of basing assessments on whether dust accumulation simply surpasses 1/32 of an inch (about the diameter of a paper clip), an OSHA spokesperson told Bloomberg BNA.

OSHA’s compliance guidance for its seven-year-old National Emphasis Program (NEP) for combustible dust references 1/32-inch dust accumulation levels. However, OSHA made clear in the latest guidance that this accumulation thickness is based on certain assumptions. These include the uniformity of the dust layer covering the surfaces and a material bulk density of 75 pounds per cubic foot (lb/ft3). The 2013 update of National Fire Protection Association consensus standard 654 includes a mathematical calculation for determining when the dust accumulation level may exceed the layer depth criteria of 1/32-inch for materials with bulk density less than 75 lb/ft3, the guidance noted.

Thus, inspectors should consider the bulk density of the dust prior to determining if there has been a violation of the housekeeping standard (29 CFR § 1910.22) or the materials handling and storage standard (29 CFR § 1910.176). For tissue paper dust, fabric fibers, and other low-density dusts (i.e., less than 75 lb/ft3), the guidance advises inspectors to collect samples for laboratory analysis of bulk density, provided that the accumulation level is greater than ¼-inch extending over 5 percent of the floor area of a room or building, or 1000 ft2, whichever is less. Sample collection steps are provided, and inspectors are instructed to send samples to OSHA's Salt Lake Technical Center in Utah.

However, the guidance also makes clear that samples for bulk-density determinations are not necessary for dust accumulations exceeding one inch in depth and extending over the same floor area. In those cases, information on the approximate bulk densities of the combustible dust may be obtained from the employer, the Internet, or other sources. Those numbers then may be used to determine the approximate values of the dust accumulations for citation purposes, according to the guidance.

OSHA believes the outcome of most inspections will remain unchanged by the new guidance. According to the OSHA spokesperson, bulk-density determinations may not be an issue in many cases because inspectors normally find combustible dust accumulations levels far exceeding hazardous levels. Only cases involving light dusts could be affected, because of the importance of bulk density in determining if hazardous accumulations of dust are present. OSHA began a controversial rulemaking for combustible dust in 2009 and held meetings in 2010. More recently, the agency proposed conducting a Small Business Regulatory Enforcement Fairness Act review in February 2016.

Jackson Lewis P.C. © 2018

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Bradford T. Hammock, Jackson Lewis, workplace safety law attorney, Hazardous Conditions Lawyer
Principal

Bradford T. Hammock is a Principal in the Washington, D.C. Region office of Jackson Lewis P.C. He focuses his practice in the safety and health area, and is co-leader of the firm’s Workplace Safety and Health Practice Group.

Mr. Hammock’s national practice focuses on all aspects of occupational safety and health law. In particular, Mr. Hammock provides invaluable assistance to employers in a preventive practice: (1) conducting full-scale safety and health compliance audits; (2) reviewing and revising corporate safety and...

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Henry Chajet, Jackson Lewis, health safety attorney, dispute resolution lawyer, overcharge recoveries legal counsel
Of Counsel

Henry Chajet is Of Counsel in the Washington, D.C. Region office of Jackson Lewis P.C.

Mr. Chajet counsels and represents clients in environmental, health and safety (EH&S) matters and antitrust matters, focusing on crisis management, dispute resolution, trial and appellate litigation, standard setting, liability prevention, regulatory and congressional proceedings and “direct purchaser” overcharge recoveries for corporate clients in antitrust price manipulation cases. He defends investigations and enforcement actions by the Occupational Safety and Health Administration (OSHA), Mine Safety and Health Administration (MSHA), Environmental Protection Agency (EPA), Department of Transportation (DOT), National Transportation Safety Board (NTSB), National Institute for Occupational Safety and Health (NIOSH) and other federal and state agencies, as well as in related tort claims and criminal cases, and in EH&S whistleblower or discrimination claims.

To achieve an integrated defense strategy at the initiation of a government investigation or enforcement action, Mr. Chajet coordinates forensic accounting and technical experts, insurance issues, government interviews, document production and public relations experts. He has extensive experience representing clients in cases involving fatal or serious injuries, explosions, chemical releases, fires, manufacturing, transportation and construction accidents, mine disasters and allegations of product toxicity or community harm. Mr. Chajet has served as co-lead counsel in successful, multimillion dollar recovery cases for corporate clients that were “direct purchasers” of commodities and products for which prices were artificially increased through monopoly price manipulation, violating antitrust law.

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