OSHA Update
Keith Epperson, vice president of manufacturing and training
OSHA Modifies Hazard Communication Standard
Monday, September 8, 2014
by: Keith Epperson, vice president of manufacturing and training

Section: Fall 2014

On March 26, 2012, the Occupational Safety and Health Administration promulgated a final rule that modified OSHA’s Hazard Communication Standard (HCS) to conform to the United Nations Globally Harmonized System of Classification and Labeling of Chemicals (77 Federal Register 17574). OSHA described the modifications to HCS as including “revised criteria for classification of chemical hazards; revised labeling provisions that include requirements for use of standardized signal words, pictograms, hazard statements and precautionary statements; a specified format for safety data sheets; and related revisions to definitions of terms used in the standard, and requirements for employee training on labels and safety data sheets.” The final rule became effective on May 25, 2012.  
OSHA estimates the cost to industry to comply with the new standard “to be about $201 million.”1 There are concerns about these costs, whether they have been appropriately estimated in the final rule and whether OSHA has properly complied with the Regulatory Flexibility Act in its determination of costs, economic feasibility and the impact on business.  
The new standard adds combustible dust as a “hazardous chemical” but does not define “combustible dust.” Instead, OSHA refers to other definitions of combustible dust that have not been subject to OSHA’s rulemaking process. Because this particular regulatory change was not proposed when OSHA published its Notice of Proposed Rulemaking in advance of the final standard, there appears to have been few comments submitted to OSHA focused on this specific change, if any, from the grain industry. 
This new treatment of combustible dust as a hazardous chemical has caused concerns in the industry, as OSHA did not follow the process of separate rulemaking regarding combustible dust. The rulemaking process provides the industry an opportunity to comment on the combustible dust changes to the standard and the relevant effects to the industry. This process is followed on all other proposed rules and should determine how combustible dust is defined and treated and not as a last minute and uninformed change to the Hazard Communication Standard.  
The apparent breadth of the new standard as it relates to combustible dust in the feed and grain industry is also of significant concern. For example, it appears that all types of grain dust would be deemed as “hazardous chemicals” under the new standard. That would seem to require, among other things, the development of safety data sheets for all grains (which would have to include, e.g., permissible exposure limits, thus requiring the development of all new safety data sheets), labels for all shipments of grain or grain products and training programs at virtually every facility in the U.S. that stores, processes or otherwise uses grain. OSHA conducted no study to determine whether such requirements would even be feasible, and as noted above, there is little or no comment from the grain industry (or other affected stakeholders) with respect to these implications because of the procedurally-flawed process by which combustible dust was included in the final rule. 
The American Feed Industry Association is part of a coalition whose members have significant concerns about the new standard’s lack of definition, cost and economic and technical feasibility, as summarized above. 
The coalition has filed litigation against OSHA due to the lack of progress in resolving the issues identified and that are problematic for the industry. They also filed briefs with OSHA earlier this year and exchanged additional briefs on two occasions. The oral arguments with the coalition and OSHA are now set for Sept. 24, in Washington, D.C. AFIA’s Production Compliance Committee has watched the process very closely to provide input when necessary. The committee plans to meet the day prior to the oral arguments and attend the court session to hear the arguments. 
The outcome of the arguments may not be known until later this year or perhaps early in 2015. Whatever the outcome, the Production Compliance Committee will provide valuable input when necessary to help AFIA’s attorneys understand and prepare to minimize the effects of the rule on the industry. 
For more information on this issue, contact Keith Epperson, AFIA vice president of manufacturing and training, at (703) 558-3568 or kepperson@afia.org.
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