Reality Check: Proposed Combustible Dust Legislation

Any future combustible dust legislation or regulation must include local, regional, and state governmental participants and an understanding of the breadth of combustible dust-related fires.

• By John Astad
• May 01, 2013

Democrats on the U.S. House Committee on Education and the Workforce recently reintroduced a combustible dust bill, "The Worker Protection Against Combustible Dust Explosions and Fires Act"¹ (H.R. 691). It's been nearly four years since OSHA published a proposed rulemaking on combustible dust, which is still in the rulemaking process.² With no definite timeframe for the implementation of a comprehensive OSHA combustible dust regulation, the committee's Democrats decided to move forward proactively in providing the nation's workforce protection from combustible dust-related fire and explosion hazards, with the reintroduced bill calling for an OSHA interim combustible dust standard.

Initially introduced in 2008 following the Imperial Sugar refinery catastrophic dust explosion, the bill has yet to pass both houses of Congress. Education, outreach, training, inspections, and enforcement concerning facilities that handle and process combustible particulate solids are direly needed as catastrophic combustible dust incidents continue to occur throughout all sectors in the United States. A problem arises in the findings of the reintroduced congressional combustible dust bill in not comprehensively identifying the magnitude of combustible dust-related incidents, where the majority of "near misses" occur as combustible dust-related fires. If congressional and administrative policy-makers cannot accurately identify the combustible dust problem, then how can they be expected to evaluate the situation objectively so as to develop cost-effective control measures?

Combustible Dust Incident Data
Since 2003, the U.S. Chemical Safety Board (CSB) has completed accident investigations on five catastrophic combustible dust incidents where every facility had a history of "near misses" in the form of combustible dust-related fires. Addressing the root causes of these fires is essential in minimizing the probability of catastrophic secondary dust explosions. CSB stated in a disclaimer from its 2006 Dust Hazard Study³: "The combustible dust incidents included here are likely only a small sampling, as no federal or state agency keeps specific statistics on combustible dust incidents."

This is an inaccurate statement because local fire departments; state program managers, such as fire marshals' offices; and the National Fire Data Center (NFDC) of the U.S Fire Administration collect specific data on combustible dust incidents. Collection of incident data is in accordance with the Federal Fire Prevention and Control Act of 19744 provided by the National Fire Incident Reporting System (NFIRS). For example, NFIRS data element #94 (dust, fiber, or lint, includes sawdust) as item first ignited is entered in the NFIRS Fire Module5 by local fire departments following a response to a combustible dust-related incident.

To understand the depth and breadth of combustible dust-related fires, it's essential to utilize data obtained from the NFIRS managed by the National Fire Data Center. The Combustible Dust Policy Institute (CDPI) recently completed a preliminary analysis of NFIRS data identifying more than 500 combustible dust-related incidents occurring in 2011. Because NFIRS is a voluntary reporting system in many states, not all incidents are reported by fire departments. Evaluating NFIRS data provided by the USFA where dust was the item first ignited in a manufacturing plant provides stakeholders valuable empirical data of combustible dust incidents, which are not rare occurrences solely resulting in catastrophe. This is where the problem arises with the multitude of "near misses," where facility owners and managers falsely believe that because nothing bad has happened in the past, then nothing bad will happen in the future -- a concept known as "normalization of deviation."

Fires Precursors to Catastrophes
An illuminating example of normalization deviation syndrome occurred on Oct. 1, 2003 in New Knoxville, Ohio, with a silo explosion during the timeframe when CSB was investigating the West Pharmaceuticals and CTA Acoustics combustible dust incidents. Several weeks prior to the Hayes Lemmerz catastrophic aluminum dust explosion in Huntington, Ind., the silo in Ohio containing wood chips exploded, resulting in two firefighter fatalities and eight firefighter injuries. The NIOSH Fire Fighter Fatality accident investigative report6 noted the fire department responded to one to two calls per year at the facility, and these calls included three fires in adjacent silos and small fires in the dust collection system.

Examples of the hundreds of annual combustible dust-related incidents in the analysis of NFIRS data, in conjunction with the multitude of "near misses" leading up to catastrophe, provides enlightening insight. This is in stark contrast to congressional findings in the reintroduced combustible dust bill with estimates of approximately 10-15 combustible dust-related incidents annually. Combustible dust incidents in the workplace are a much larger and more complex problem than recognized by OSHA in the current rulemaking process and by legislators with the reintroduced bill.

The problem is intensified in the findings of the reintroduced bill that note, "OSHA issued a grain handling facilities standard (29 C.F.R. 1910.272) in 1987 that has proven highly effective in reducing the risk of combustible grain dust explosions." Highly effective? So where is the cutoff of lives lost and severe injuries incurred due to dust explosions and fires where a standard is not highly effective? Who is going to tell the families of the seven workers killed and 10 injured following the 1998 DeBruce Grain Elevator explosion in Wichita, Kansas or the families of the six workers killed and two injured in the October 2011 Bartlett Grain elevator explosion in Atchison, Kansas that the OSHA grain standard is proven to be highly effective?

Overall, the OSHA Grain Handling Facility Standard has reduced loss of life, injuries, and property loss tremendously, yet incidents still occur. It's not possible for OSHA inspectors to visit all workplaces with the agency's limited resources of approximately 2,200 inspectors responsible for ensuring the health and safety of 130,000,000 workers in more than 8,000,000 sites across the country. An AFL-CIO summary7 of OSHA inspector totals for FY 2012 listed 15 inspectors for the entire state of Kansas, or one inspector per 86,000 workers in the state.

How can fires be effectively regulated at the federal level without collaboration from local, regional, and state officials? Combustible dust hazards, as the NFIRS data indicate, are primarily a fire issue and secondarily an explosion issue, not the other way around. Subsequently, fire prevention and protection is a local issue where building and fire inspectors in addition to local fire departments have an in-depth knowledge of local conditions, whereas OSHA inspectors working out of distant area offices do not.

Code Enforcement and Fire Prevention
The International Building and Fire Codes, or I-Codes, reference the NFPA combustible dust standards, which local building and fire inspectors can utilize in their local inspection and enforcement activities. The key is educating these stakeholders on combustible dust hazards just as CSB recommended in its 2006 Dust Hazard Study, whereas OSHA inspectors must be trained on combustible dust hazards at the OSHA Training Institute.

In addition to training of local building and fire inspectors, an informative NFPA report, "A Third Needs Assessment of the U.S. Fire Service,"⁸ highlighted other key issues where fire prevention and code enforcement were key elements. Results from a NFPA survey in compiling data in the report indicated "24% of departments reported that no one conducts fire-code inspections in the community, down from 27% in 2001 and 25% in 2005." According to the report, building inspections regarding life safety were conducted by full-time fire department inspectors, in-service firefighters, building department inspectors, separate inspection departments, other, or no one. Areas of plan review, permit approval, and inspections must be addressed at all levels of government if combustible dust hazards are to be minimized to a risk tolerant level.

An excerpt from the reintroduced congressional bill mandates that an OSHA "interim final standard shall be based on those portions of the National Fire Protection Association (NFPA) in effect on the date of enactment of the Act." Where's a mention of the International Building and Fire Codes already utilized by many local code officials in addressing combustible dust workplace hazards in the reintroduced bill?

This is not an issue of standards or regulations available in addressing combustible dust hazards, but instead the effective enforcement of codes and standards already in place, with the I-Codes referencing NFPA combustible standards in a multitude of jurisdictions. The primary gap with local code enforcement and fire prevention is highlighted in the NFPA needs assessment report, in addition to local resources reduced to the bare minimum.

Accident Prevention and Mitigation
In the meantime, stakeholders can take action now with requirements outlined in the reintroduced bill for a proposed OSHA interim standard. For example, hazard assessments already are required in OSHA’s regulation 1910.132(d); ignition control and housekeeping with fire prevention plans, 1910.39(b); written safety and health information in Hazard Communication, 1910.1200; lockout/tagout (energy control procedures), 1910.147; and Hot Work, 1910.252. Additional aspects of the proposed interim combustible dust standard come right out of the OSHA Process Safety Management (PSM) playbook, which includes employee participation, process safety information, process hazard analysis, mechanical integrity, incident investigation, and training. NFPA combustible dust standards currently incorporate many PSM elements, such as contractor training and accident investigations.

It's been nearly a half century since the Fire Research and Safety Act of 1968 was signed by President Lyndon Johnson back in the time of the Vietnam War's Tet Offensive. Only one member of Congress from that era, U.S. Rep. John David Dingell, Jr., is serving in the current 113th Congress. As a result, congressional members are not aware the Fire Act of 1968 was the forerunner of the U.S. Fire Administration, where it's well understood that fire cannot be regulated at a federal level. Instead, fire data collection, public fire education, fire research, fire service training, and Assistance to Firefighters Grants (AFG) provide the most efficient means of federal participation.

Any future combustible dust legislation or regulation must include local, regional, and state governmental participants. If not, then we'll all have some explaining to do to families regarding future regulation that supposedly was highly effective.

Resources
1. H.R.691, Worker Protection Against Combustible Dust Explosions and Fires Act of 2013. Available at http://thomas.loc.gov/cgi-bin/query/z?c113:H.R.691:

2. OSHA combustible dust rulemaking process. Available at http://www.osha.gov/dsg/combustibledust/rulemaking.html

3. U.S. Chemical Safety and Hazard Investigation Board, "Combustible Dust Hazard Study," Investigation Report 2006-H-1, CSB, Washington, DC (November 2006)

4. Federal Fire Prevention and Control Act of 1974, (PL 93-498, 29 Oct. 1974). Available at http://www.house.gov/legcoun/Comps/FIREPREV.PDF

5. USFA [2012] "National Fire Incident Reporting System 5.0 Complete Reference Guide," January 2012, U.S. Fire Administration, National Fire Data Center. Available at http://www.nfirs.fema.gov/documentation/reference/

6. NIOSH [2004]. Two fire fighters die and eight fire fighters are injured from a silo explosion at a lumber company -- Ohio. Morgantown, WV: U.S. Department of Health and Human Services, Centers for Disease Control and Prevention, National Institute for Occupational Safety and Health, FACE Report No. 2003-32. Available at http://www.cdc.gov/niosh/fire/reports/face200332.html

7. AFL-CIO, [2012] "Number of OSHA Inspectors by State Compared with ILO Benchmark Number of Labor Inspectors." Available at http://www.aflcio.org/content/download/23061/260591/42+BENCHMARK

8. NFPA [2011] "A Third Needs Assessment of the U.S. Fire Service," Quincy, MA: National Fire Protection Association. Available at http://www.nfpa.org/itemDetail.asp?categoryID=2228&itemID=52449&URL=Research/Fire%20reports/

This article originally appeared in the May 2013 issue of Occupational Health & Safety.