Occupational Safety and Health Administration (OSHA) Issues Guidance for Inspectors on Combustible Dust | The National Law Review
Occupational Safety and Health Administration (OSHA) Issues Guidance for Inspectors on Combustible Dust
OSHA inspectors must consider a manufacturer’s or importer’s use of
information gained from actual explosion events, lab testing, published
data on similar materials or particle size to assure they have properly
classified their products for combustible dust hazards under the revised
Hazard Communication Standard (HCS), OSHA said in a recent guidance
The agency’s HCS was revised to bring it into harmony with a global
standard. Since that standard does not contain a classification for
combustible dust hazards, OSHA amended the standard's definition of
“hazardous chemical” to include combustible dust so as to maintain
coverage of the hazard under its HCS.
That move has put the agency in conflict with industry stakeholders
who claim inclusion of combustible dust in the new rule amounts to
backdoor rulemaking. A lawsuit over the agency action is currently
playing out in federal appeals court.
Marc Freedman of the U.S. Chamber of Commerce said the memo
perpetuates problems OSHA created by including combustible dust in the
standard. He noted that the agency did not give stakeholders a full
opportunity to comment on its inclusion of combustible dust during the
HCS rulemaking. Freedman also complained that OSHA still does not have a
definition of combustible dust, yet employers are expected to identify
combustible dust hazards and train their employees about it.
“The way the memo reads, it is effectively implementing a non-OSHA,
consensus organization's definition without the benefit of rulemaking,
without a feasibility analysis, economic analysis or examination of its
effect on small business. That's not how it's supposed to be done,”
In its memo, OSHA noted the HCS does not define combustible dust.
OSHA explained that this omission results from ongoing OSHA rulemaking
on the substance and efforts underway at the United Nations. Instead,
the agency has provided interim guidance, including a definition in a
national emphasis program (NEP). A number of voluntary consensus
standards, most notably from the National Fire Protection Association
(NFPA), also provide guidance, according to the agency.
The HCS requires manufacturers and importers, called “classifiers” in
the guidance memo, to “identify and consider the full range of
available scientific literature and other evidence concerning the
potential hazards” of their products in the form they are shipped and
which might stem from normal use and foreseeable emergencies. There is
no testing requirement.
Actual experience following a deflagration or dust explosion often
offers the best information about the product, OSHA said. In such cases,
the product should be classified as a combustible dust unless it can be
shown conditions surrounding the event are not expected to occur under
normal conditions of use or in foreseeable emergencies.
Absent that information, classifiers may rely upon reliable
laboratory test data. The memo cites ASTM methods as well as an OSHA
method found in its NEP. Another option is published test data, such as
that distributed by NFPA and public databases, such as one from Germany
called the “Gestis-Dust-EX” database. Data may be relied upon provided
it derives from a material substantially similar to the classifier’s
product, OSHA said. If laboratory data or positive published test data
for similar substances are available but not used by the classifier, the
inspector must ask why, according to the guidance.
Where no test data are available or testing is inconclusive, the
classification may be based on available particle size, the agency said.
If the material will burn and contains a sufficient concentration of
particles that would pass through No. 40 or No. 35 sieves to create a
fire or deflagration hazard, it should be classified as combustible
The guidance was not meant to be all-inclusive, since other reliable
methods may be available, according to the agency, encouraging its
inspectors to consult agency resources in those instances. OSHA also
pointed out that the guidance is not intended for downstream users.
Rather it must be applied when inspecting manufacturers and importers,
usually from referrals concerning inadequate or inappropriate labels or
safety data sheets. Companies must comply with most provisions of the
rule by June 2015.
Jackson Lewis P.C. © 2014