Industry Coalition Files Legal Challenge Over Inclusion of Combustible Dust in OSHA Revised HazCom Standard

A coalition of industry trade associations has filed a legal challenge against the Occupational Safety and Health Administration over its inclusion of new language on combustible dust in its revised hazard communication standard.

The legal review is being pursued by the industry organizations on the grounds that the agency violated several federal laws for, among other things, not seeking public comment on including combustible dust during its rulemaking process on the hazard communication standard.  Subsequent settlement discussions with OSHA to resolve the matter were unsuccessful. 

Under the revised hazard communication standard, OSHA deems combustible dusts to be hazards “not otherwise classified.” This ostensibly obligates employers to subject combustible dusts to most of the same labeling and safety data sheet requirements as hazardous chemicals, since shipments of products that could produce combustible dusts when subsequently used in “processing” or in other ways where dust could be generated are subject to the new rules. Specifically, this appears to require that safety data sheets would need to be developed and accompany shipments for all such “products.” It also would mean that such “products” would be required to have an OSHA-approved label. 

The industry coalition consists of the American Feed Industry Association, Corn Refiners Association, National Grain and Feed Association and National Oilseed Processors Association. Under an agreement with the other three organizations, NGFA is coordinating management of the legal effort through the Washington-based law firm of Arent Fox, NGFA’s outside legal counsel.

In early April, Arent Fox filed a motion with the U.S. Appeals Court for the District of Columbia Circuit requesting that it set a timeline for the written briefs to be filed in the case. On July 30, the appellate court issued an order further deferring the establishment of a briefing schedule to either Oct. 28, or 30 days after all OSHA settlement discussions have terminated, whichever is sooner.

In addition to OSHA’s failure to provide adequate notice and opportunity for public comment on including combustible dust in its hazard communication standard, the industry groups also maintain that the agency has not provided an adequate definition for what constitutes combustible dust. In that regard, the industry groups cite the fact that the agency still is in the early stages of a separate rulemaking initiated in 2009 focused solely on combustible dust, and state that including an undefined combustible dust term within the hazard communication standard before completing this separate rulemaking violates several federal laws.

Further, the organizations state OSHA has failed to provide a sound scientific basis for including combustible dust as a hazardous chemical in its final hazard communication standard, and has not considered adequately the feasibility and costs of applying the combustible dust provisions of the final rule to the types of facilities operated by the industry groups’ member companies.

Finally, the industry groups assert that by determining facilities to be manufacturers and distributors of the “hazard” (i.e., combustible dust), OSHA provides that the federal rules pre-empt state laws and regulations, but not negligence findings by state courts. This undermines the federal pre-emptive effect of the national standard, the groups assert, and results in potentially greater liability on industry in the event of an accident involving combustible dust.