Tuesday, October 28, 2014

DC Circuit rejects challenge to OSHA Hazardous Communication Standard


DC Circuit rejects challenge to the revised OSHA Hazardous Communication Standard

From: Blog Gravel2Gavel Construction Law Blog

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On October 24, 2014, the D.C. Circuit rejected a challenge to the revised OSHA Hazardous Communication Standard insofar as it applies to "combustible dust". The case is National Oilseed Processors Association, et al., v. Occupational Safety & Health Administration, et al.  The Standard was substantially revised in 2012 to conform with the Globally Harmonized System, a uniform international chemical labeling system. The Hazard Communication, 77 Fed. Reg. 17,574 (Mar. 26, 2012) ("Final Rule") designated "combustible dust" as a hazardous chemical subject to the
Standard, although OSHA has yet to develop a workplace standard addressing the hazards of combustible dust in the workplace. This decision may be of interest to all manufacturers and employers subjectto the Hazard Communication Standard; it places in context the development of the rule over the past 30 years, and demonstrates again how difficult it is to have such rules overturned.

The National Oilseed Processors Association includes in its membership the owners and operators of grain handling businesses who have a keen interest in this new standard. The Association argued, and
the court rejected, contentions that it was not provided adequate notice of the inclusion of combustible dust in the rule, that OSHA's decision was not supported by substantial evidence as the statute requires, and that their constitutional Due Process rights were violated in that the agency, by failing to define "combustible dust", did not provide fair warning of the agency's enforcement measures.

HazCom Rule Addresses Combustible Dust

Bloomberg BNA

"There is a “general consensus” on what constitutes combustible dust"

"The final rule, as well as a guidance document issued in 2013, “lay out reasonably consistent and
clear instructions” on how employers should decide whether they have a combustible dust hazard, the judge said."

HazCom Rule Can Address Combustible Dust, Court Says in Rejecting Industry Challenge

Monday, October 27, 2014

Oct. 24 — A federal appeals court denied a petition Oct. 24 to vacate the Occupational Safety and
Health Administration's Hazard Communication Standard as it applies to combustible dust.

The petitioners argued that the Hazard Communication Standard—a final rule—should be vacated because OSHA failed to give adequate notice that combustible dust would be included in the rule and that combustible dust should instead be addressed in a pending rulemaking on the subject. They also told a three-member panel of the U.S. Court of Appeals for the District of Columbia Circuit that the final rule was unconstitutionally vague because it failed to define “combustible dust.”

The petitioners, which include the National Oilseed Processors Association, the Corn Refiners Association, the National Grain and Feed Association and the American Feed Industry Association, argued that they hadn't received adequate notice from OSHA that combustible dust from grain would be among the items included in the Hazard Communication Standard.

It wasn't mentioned in the 2006 advance notice of proposed rulemaking, the petitioners argued. Since
combustible dust had been regulated since 1987 by the grain handling standard, the petitioners said, they couldn't have anticipated that it would be addressed in this final rule.

The groups represent companies involved in grain handling as part of their agricultural and industrial operations, including Archer Daniels Midland Co., Cargill Inc., Southern States Cooperative Inc. and Perdue AgriBusiness LLC.

Government lawyers, in a brief filed June 5, argued that the grain handling groups know what combustible dust is—even absent a specific definition—for the purpose of complying with OSHA's grain handling standard and that the agency's proposed hazard communication standard explicitly discussed combustible dust, and stakeholders submitted comments both for and against that proposal.

History Supports OSHA

Writing for the panel, Judge Judith W. Rogers disagreed with the petitioners, noting that combustible dust was addressed in OSHA's 2009 notice of proposed rulemaking.

Rogers added that OSHA had issued interpretive letters saying that its standard would cover grain and other agricultural products as far back as 1986. In 1994, she wrote, OSHA rejected the grain industry's argument that grain dust shouldn't be covered by the Hazard Communication Standard.

The petitioners also argued that, statutorily, rules on combustible dust should be covered under a pending rulemaking on the subject rather than in the Hazard Communication Standard because there is as yet no clear definition of what constitutes combustible dust. Existing standards from OSHA and private industry are inconsistent and haven't been reconciled by rulemaking, the petitioners argued.

‘Operative Definition.'

The judge disagreed,saying that OSHA has supported an “operative definition” of dust in its National Emphasis Program on combustible dust.

“The various government and industry definitions of combustible dust are not as different as petitioners suggest: each definition, with varying phrasing, refers similarly to particles that may explode under certain conditions.”

Because, in the court's view, there is a “general consensus” on what constitutes combustible dust, OSHA could have reasonably concluded that it didn't need to spell out a uniform definition in its final rule.

Rejecting the petitioners' claim that OSHA's final rule is unconstitutionally vague, Judge Rogers said
the rule, as well as a guidance document issued in 2013, “lay out reasonably consistent and clear instructions” on how employers should decide whether they have a combustible dust hazard.

Rogers rejected the petitioners' claim that, by failing to provide a definition, OSHA rendered its final rule unconstitutionally vague in violation of the Due Process Clause. The final rule, as well as a
guidance document issued in 2013, “lay out reasonably consistent and clear instructions” on how employers should decide whether they have a combustible dust hazard, the judge said.

The court concluded by noting that the petitioners had argued that the final rule violates their First Amendment rights by requiring them to communicate combustible dust hazards. However, the judge concluded, petitioners made this argument in a footnote, and the D.C. Circuit generally doesn't
address an argument “if a party buries it in a footnote and raises it in only a conclusory fashion.”

Judges Karen LeCraft Henderson and Thomas B. Griffith joined in the opinion.

Donald C. McLean of Arent Fox LLP represented the petitioners at oral argument. OSHA attorney Louise M. Betts represented the government.

Text of the opinion is available at


Friday, October 24, 2014

OSHA Stalls on Combustible Dust, NFPA Prepares New Standards

From Composites Manufacturing Magazine

OSHA Stalls on Combustible Dust, but NFPA Prepares New Standards

OSHA’s combustible dust rulemaking has been delayed, while the National Fire Protection Association (NFPA) is adding a new standard to address hazard  identification and control. These were key messages presented September  20 at a Small Business Administration event attend by ACMA staff.

The dust from grinding or cutting even highly filled composite laminates is  “combustible” when tested using OSHA’s approved test methods. OSHA has cited several composites manufacturers for failure to comply with the current version of NFPA Standard 654, notably for poor housekeeping and
locating cyclones and other dust collection equipment indoors.

Under OSHA’s National Emphasis Program for combustible dust, the agency is enforcing NFPA standards while it develops its own combustible dust rule. NFPA 654 is the standard for preventing fire and dust explosions from the manufacturing, processing, and handling of combustible particulate solids. Other NFPA standards apply to the hazards of agricultural, metals, wood and sulfur dusts.

According to the September 20 presentation, OSHA has acknowledged problems with the rulemaking. The agency is having trouble finding an approach that covers a wide variety of materials, process and equipment, and devising an enforceable definition of combustible dust.

In the meantime, OSHA is looking for other ways to address combustible dust hazards. Last
year’s update to OSHA’s Hazard Communication Standard, for example, classified combustible dust as a “hazardous chemical” and requires employers to provide warnings to workers and customer about hazards and controls.

OSHA has reportedly contributed to the development of a new standard, NFPA 652, which will provide the basic principles of and requirements for identifying and managing the fire and explosion hazards of combustible dusts and particulate solids, and will direct users to other NFPA standards for industry and commodity-specific hazards, such as NFPA 654.

The Chemical Safety Board on July 25 issued its first ever “Most Wanted Safety Improvement” designation to highlight the importance of OSHA issuing a standard to address combustible dust
hazards. Several recent combustible dust incidents have killed and injured many workers.

A task group of ACMA’s Government Affairs Committee is reviewing the drafts of the proposed new NFPA 652 standard and the revised NFPA 654 standard. The deadlines for submission of comments are November 15, 2013 for NFPA 652, and July 2, 2014 for NFPA 654.

Explosion, two-alarm fire at wood pellet manufacturer

Explosion, two-alarm fire damages Banks wood pellet manufacturer

on July 31, 2014 at 8:37 PM, updated August 01, 2014 at 6:16 AM 

A wood pellet manufacture in Banks closed for the day after an explosion and two-alarm fire damaged the business early Thursday.

Four employees safely escaped the fire at West Oregon Wood Products on Northwest Sunset Avenue, said Banks Fire District  Chief Brian Coussens. The official cause of the explosion and fire are
still under investigation. The business creates wood pellets for stoves.

The incident was reported about 3:15 a.m., and the business' president, Mike Knobel, said equipment related to air filtration in the pellet creation process is suspected to have caused the explosion.

Several pieces of production equipment sustained severe fire-related damages, Coussens said. The blaze was extinguished with no injuries.

Knobel said he was grateful to the responding firefighters and that millwrights were assisting in inspecting the site to determine a cause.

The company has another plant in Columbia City and the fire in Banks isn't expected to affect West Oregon Wood Products' inventory, according to Knobel.

"We'll be down," he said, "but it will be for a short time."

Rebecca Woolington of The Oregonian staff contributed to this report.
-- Everton Bailey Jr.

Thursday, October 23, 2014

Idaho Wood Pellet Plant Burns to Ground | Firehouse

Wood Pellet Plant Burns to Ground in Idaho

Aug. 05--GRANGEVILLE -- A wood pellet manufacturing building was destroyed by fire late Monday about a mile north of here along U.S. Highway 95.

The main production building owned by Rocky Canyon Pellet Company caught fire about 6 p.m. Monday, said Grangeville Rural Fire Chief Danny Tackett, and burned to the ground within less than three hours. The company makes pellets for wood stoves.

"It had a head start on us," Tackett said Monday night. "There was a lot of dust inside the building. It was an old building; it used to be an old horse barn."

This is the fourth time in the past eight or nine years, Tackett said, that the fire department has been called to a fire at the location.

Adjacent buildings, including a residence, were not harmed, he said, and no one was hurt in the fire. Equipment and stacks of pellets inside the building burned in the blaze, he said.

The cause of the fire was not known Monday night. Tackett said a state fire inspector is likely to visit the site within the next couple of days to determine the cause.

He did not know whether the building was insured.

Ten firefighters and three fire trucks were called to the scene. Firefighters were assisted by crews from the U.S. Forest Service, who helped ensure the fire did not spread to nearby grassy fields; Idaho
Forest Group; and Primeland Corp., which helped supply water.

Tackett said the owner of the company, Lot Smith of Grangeville, intends to resume production when the damage is repaired.

Hedberg may be contacted at (208) 983-2326.
Copyright 2014 - Lewiston Tribune, Idaho

Wednesday, October 22, 2014

Three injured in wood pellet mill explosion

Three injured in Burns Lake wood pellet mill explosion (updated)

One man suffered third-degree burns and two other employees were injured in an explosion at a wood pellet plant in Burns Lake on Thursday. Leroy Reitsma, president of Pinnacle Renewable Energy plant said a "fire-related incident" happened at the Burns Lake mill, located on Highway 16 east of Burns Lake, at around 8 a.m. Photograph by: Pinnacle Renewable Energy, ...

One man suffered third-degree burns and two other employees were injured in an explosion at a wood pellet plant in Burns Lake on Thursday.

Leroy Reitsma, president of the Pinnacle Renewable Energy plant said a “fire-related incident” happened at the Burns Lake mill, located on Highway 16 east of Burns Lake, at about 8 a.m. He said the fire broke out inside of some equipment used to dry wood fibre and it caused an explosion.

Pinnacle has been fined on several occasions for safety issues. In May, the pellet plant in Burns Lake was fined $48,483 for a failed safety inspection in December related to combustible dust, while its plant in Strathnaver south of Prince George was fined $36,223, also for safety lapses. Its plant in Quesnel was fined $31,380 following an inspection in May.

The fines were revealed in a Vancouver Sun report in August that showed seven of 10 wood pellet manufacturers failed WorkSafeBC inspections, according to information obtained through a freedom of information request.

Reitsma said Thursday’s explosion happened during a routine maintenance shutdown and the company is working with WorkSafeBC to investigate what happened.

WorkSafeBC received a call shortly after 9 a.m. and sent two investigators to the scene, said Scott McCloy, a spokesman for the work safety agency.

The Burns Lake plant was last inspected on June 17, and no problems were found, said McCloy, adding that “combustible dust issues were being managed.”

Other pellet plants that have received stop work orders over safety concerns are Okanagan Pellet in West Kelowna and Pacific BioEnergy in Prince George.

Pellet plants use wood shavings and sawdust that are compressed into pellets, which are used to fire boilers that produce electricity and steam, or are burned in wood stoves for heat.

An explosion caused extensive damage at Pacific BioEnergy’s pellet plant in Prince George in December 2010, where dust was cited as a factor ignited by a spark. That incident followed back-to-back explosions that rocked the pellet plant in March 2008.

WorkSafeBC has been conducting periodic inspection blitzes after explosions at two sawmills killed four workers and injured dozens of others in 2012.

The safety agency’s focus has mainly been on sawmills — which are showing some improvement in handling dust — but it has also been checking other wood plants.

Pellet plants have experienced explosions in the past, but no workers had been injured until now.
Firefighters from Burns Lake rushed to the plant around 8:30 a.m. By the time they arrived, the flames had been extinguished by its built-in suppression system, according to a statement from the municipality.

Babine Lake First Nation Chief Wilf Adam said he went to the Burns Lake hospital after he heard about the explosion because several members work at the mill. He witnessed one young man being brought in on a stretcher, while two other young men walked into the hospital with facial injuries.
“Two of the men looked really young, and they had bandages on their faces, but they looked like they were OK,” he said.

An employee reached Thursday afternoon refused to comment on the explosion, saying his employer told workers not to speak to the media.

RCMP Cpl. Dave Tyreman said the plant was evacuated after the explosion and about 30 employees were taken to a safe area.

The cause of the fire is unknown and RCMP and WorkSafeBC will continue to investigate.

Jobs Minister Shirley Bond, who oversees WorkSafeBC and implemented recent government changes to mill inspection procedures, noted that the mill had been inspected in June and there were no problems. As of Oct. 1, the government has two dedicated inspectors who examine pellet mills in the province on a monthly basis, she said Thursday at the legislature.

That development came after a report by government-appointed reviewer Gord Macatee into inspection problems at the province’s WorkSafeBC branch, which led to a lack of charges at other mill explosions, Bond said.

“There are 10 facilities in the province and we recognized after the Macatee report there needed to be a focused initiative to deal with pellet plants,” said Bond.
“I don’t want to speculate on what happened here. I’m told that the mill was actually in maintenance mode at the time of the incident.”

Recent WorkSafeBC changes mean that if inspectors find any reason for possible charges relating to the Pinnacle explosion that a separate investigative team will be brought in to preserve evidence related to pursuing that charge, Bond said.

“I wish I could promise to British Columbians today that we would not have workplace incidents,” Bond said. “I wish I could do that and sadly I can’t. What I can do is ensure the process we have in place creates the safest workplaces possible and when there is a tragic or unfortunate incident that we investigate it properly and make sure there are consequences when appropriate to employers.”

The Canadian Wood Pellet Association and The B.C. Forest Safety Council are working together to improve dust safety with the formation of a committee that includes all pellet manufacturers in B.C. A workshop in dust safety was held recently in Prince George.

With files from Gord Hoekstra, Brian Morton and Matthew Robinson

Thursday, October 16, 2014

OSHA Penalties Force Pet Food Manufacturer to Close

OSHA Standards, Penalties, Force Illinois Pet Food Manufacturer to Shutter

Posted: October 15, 2014, 9:55 a.m. EDT

All-Feed Processing and Packaging Inc. can’t afford to pay the penalties OSHA has levied for numerous safety violations and is now closing its doors.

In May, the agency hit All-Feed with $254,000 in fines for exposing workers to combustible-dust and respiratory hazards.

"Having spent basically every penny that we have to come into compliance, there’s just nothing left for the citations, said Tim Anderson, owner of All-Feed, whose factory is located in Galva and main
office in Alpha, Ill.

The company will continue production for two or three months to fulfill existing contracts with its customers; however, the company won’t take on any new contracts, Anderson added.

All-Feed provides grinding, cleaning and packaging services to the pet-food industry, and it also offers R&D services such as granulation, dehydration, roasting and separation for new products or packaging.

OSHA inspected All-Feed’s Galva plant in November 2013, responding to a complaint. The agency cited All-Feed for one repeat and five willful violations, alleging that the plant’s high concentration of airborne dust created an explosion hazard and could cause workplace-induced asthma and other illnesses.

The November 2013 inspection was the most recent in a slew of OSHA inspections dating back to January 2011, which landed All-Feed in the agency’s Severe Violator Enforcement Program.

"All-Feed Processing and Packaging continues to demonstrate a complete disregard for the health and safety of its workers by failing to protect them from combustible dust hazards. These can ignite quickly, without warning, and can cause catastrophic damage,” said Tom Bielema, OSHA’s area director in Peoria, Ill., in May 2014. "The employees at All-Feed deserve an employer that cares about their safety, and this company keeps failing to provide that.”

The company has not laid off or terminated any of the factory’s 20 workers, but it has reduced their hours, Anderson said.

Wednesday, October 15, 2014

Tips to extinguish factory fire risks

5 tips to extinguish factory fire risks

From PropertyCasualty360

5 tips to extinguish factory fire risks

Last week was National Fire Prevention Week, which commemorates the Great Chicago Fire of 1871 that killed an estimated 300 people, left 100,000 homeless, and destroyed more than 17,000 structures. In honor of Fire Prevention Week, Zurich presents tips to prevent factory fires.

A factory fire can spell devastating consequences for a company and its employees. A fire at a factory or manufacturing facility can result in loss of life, injured workers, loss of wages from a factory shutdown, and production downtime. According to the National Fire Protection Association (NFPA), property losses at U.S. factories total nearly $1billion each year.

Factory fires can be caused by three common factors: hot work, combustible dust, or hydraulic fluid leaks. "Hot work" is defined as any process that can be a source of ignition when flammable material is present, such as welding. Zurich recommends companies don't use hot work if cold methods can be used instead. In instances where hot work is used, Zurich advises to remove combustible and flammable materials from the area and ventilate flammable vapors.

Make sure combustible dust does not accumulate to more than 1/32 of an inch. Use cleaning methods that prevent dust clouds from going up
into the air. For hydraulic fluids, make sure to inspect and properly maintain equipment to prevent a leak from occurring. (Click the chart on the right for more tips.)

Even with proper workplace prevention, accidents can still happen.

5 tips for factory owners to prepare a building and its occupants for the possibility of a fire.


1. Gather information. 

It is important to note any unoccupied floors in the building, get alarm system details, identify hydrant availability, get information on the fire protection systems as well as heating and cooling systems, and learn the quantities and locations of hazardous materials or machinery.  Make sure to list all tenants and get descriptions of their businesses, hours of operation and when they are on site, their location, contact information, and if they have employees with specific rescue needs.

2. Document and publish information.

Develop written fire plans that are easy to understand, accessible, and regularly updated. Include the information gathered on the previous page, including property and tenant data, as well as maps, diagrams, and drawings that reflect the building's construction, the surrounding property's configuration, or tenant dwellings. Include information like blueprints, floor plans, and aerial photographs of the building showing its size, height, and fire-related walls. File the information and
publish it in binders. Make the plan electronically accessible on your server or in the cloud as well.

3. Host building walk-throughs.

Invite the local fire department to visit the building periodically, especially in areas predominantly served by volunteer firefighters where officers frequently change. Letting the fire department get direct knowledge of a building may help save lives and minimize damage in the event of a fire.  Inspections and walk-throughs of complex buildings help familiarize current fire officers with your building's layout and could be helpful.

4. Practice, practice, practice. 

Conduct regular fire drills to inform employees of efficient and effective exit strategies in the event of a fire. Employees should be aware of the exits in their areas and how to safely reach them when they
need to evacuate the premises. Employees should meet at a pre-determined location after evacuating the building in order to take a head count.

5. Assign tasks. 

Appoint building fire wardens and assign them with evacuating building occupants in the event of a fire. Make sure to appoint specific people who are likly to be in the building at all hours to notify the
fire department in the event of an emergency. In these roles, owners and occupants are just as vital to a pre-fire plan as fire departments.

Wednesday, October 8, 2014

Biomass is more highly regulated than most people realize

US Industrial Pellet Association conference wraps with impassioned producer panel


USIPA conference wraps with impassioned producer panel

By Tim Portz | October 03, 2014

The 2014 Export Pellets Conference concluded with a panel comprised of a selection of the producer members of the U.S. Industrial Pellet Association, moderated by the organization’s executive director, Seth Ginther.

The session began with brief updates from each of the producers about their accomplishments and activities from the previous year.

Joining the panel for the first time and introducing himself to the conference delegation was E-Pellets Group CEO Doug Albrecht. E-Pellets recently acquired the formally boarded up Louisiana Pacific OSB mill in Athens, Georgia, to convert it into a wood pellet production facility.

The facility is expected to produce 450,000 metric tons annually by August 2015.

Most notable during this introductory segment was an announcement from Zilkha Biomass CEO Jack Holmes that Zilkha’s first commercial-scale facility producing the much anticipated steam exploded pellets would be operational in January and expected to deliver its first shipment of pellets to Europe in March of 2015.

The bulk of the remaining discussion revolved around the continuing struggle producers are having placing their industry within the broader framework of North American forestry for skeptical foreign media outlets, nongovernmental organizations and policymakers. While earlier in the conference it was established that over 60 percent of British citizens support the use of biomass for power production, pelletproducers are wary of a vocal and well organized minority adamantly opposed to the use of woody biomass as a coal replacement.

A Sept. 28 story published in the London Sunday times was referenced during the Q&A session, in which the author of the article, Danny Fortson described the regulation of North American forestry as
“notoriously lax.”

Mike Williams of Westervelt Renewable Energy reacted to the quote and said, “We are more highly regulated than most people realize.” He cited the Clean Water Act, the Endangered Species Act and the Environmental Protection Agency as federal regulations that impact the activities of all forestry practices. He continued by citing the company’s voluntary certification programs and said, “I would invite him [Fotrson] to participate in our Sustainable Forestry Initiative, Forest Stewardship Council and Best Management Practice audits.

Morten Neraas, president and CEO from Green Circle added, “Often times people get on a crusade and begin to conveniently ignore the facts.” Ginther continued the conversation and recounted a meeting that he and USIPA Chairman Harold Arnold had with members of Greenpeace in England earlier this summer. “They simply had not taken a deep dive into how forestry worked,” said Ginther. Arnold followed Ginther and said, “I want to believe that these organizations have noble goals,” but then pivoted and called NGO practices “sensationalism” deployed largely to motivate the organization’s supporters to contribute more money to NGO coffers.

Despite the frustration, the panel was unanimous in their understanding that if they hoped to enjoy a long-term market opportunity in the U.K., this was a conversation they were going to have to
continue to engage in. “The utilities are telling us to give them what they need to prove that what they are doing is sustainable and legal,and we need to be able to do that,” said Williams.

As the panel drew to a close, producers were asked to imagine what the pellet market would like in 2027 as the subsidies that support their use in British power plants expire that year. Ginther suggested that the industry would need to begin thinking and strategizing about how to become “subsidy independent” and others on the panel referred to the end of subsidies as a “cliff” that was now just over a decade away.

Production and transportation efficiencies were all mentioned and progress in those categories were expected and cited, but no panelist thought these improvements and savings would be enough. “The cost of the fuel will never drive all of the cost reductions needed,” said Arnold.

While power stations in the U.S. and Canada were mentioned as potential candidates for future market growth, the panel cited a strong coal lobby and low shale gas prices as a barrier to the growth of that market.

Before the panel wrapped, Williams returned to the question of the industry’s overall sustainability and wondered aloud, “I just don’t understand how people would think we would destroy the resource that we rely on for our business.”