January 18, 2010
Occupational Safety and Health Administration
OSHA Docket Office
Technical Data Center, Room N-2625
200 Constitution Avenue, N.W.
Washington, DC 20210
RE: Combustible Dust Advance Notice of Proposed Rulemaking
Docket No. OSHA-2009-0023/RIN 1218-AC41
Dear Madam/Sir:
These comments are in response to the October 21, 2009 Advance Notice of
Proposed Rulemaking (ANPR) published by the Occupational Safety and Health
Administration (OSHA) requesting comments on issues related to combustible
dust hazards in the workplace.
The North American Millers’ Association (NAMA) is the trade association
representing the wheat, corn, oat and rye milling industry. NAMA’s 47
member companies operate 170 mills in 38 states and Canada. Their
aggregate production of more than 160 million pounds per day is
approximately 95 percent of the total industry capacity.
NAMA members are committed to the safety and health of their employees.
That commitment is witnessed by the industry’s excellent safety record which
is confirmed by the ANPR’s Table 1 “Industries Having at Least One Recorded
Combustible Dust Incident Reported Since 1980, According to OSHA
Research.” This table shows no combustible dust incidents in the flour milling
industry, NAICS industry code 311211.
Being regulated under 29 CFR 1910.272 – the Grain Handling Facilities
Standard, and by 29 CFR 1903.1 - the General Duty Clause of the
Occupational Safety and Health Act of 1970, has contributed to this record of
safe operations. However, there are three more powerful motivators.
First, grain mills are regulated as food manufacturing facilities under the US
Food, Drug and Cosmetic Act. This means that, in addition to OSHA inspections, grain mills also inspected for cleanliness by Federal Food and Drug Administration inspectors as well as by state inspectors.
Second, our customers have a reputation to protect and they demand
cleanliness in our facilities. Thus, in addition to federal and state compliance
and enforcement inspections, we are constantly being audited and inspected
by our customers for compliance with their strict rules for cleanliness.
Finally, the dust in a grain mill is not merely a nuisance – it is the product we
sell. It has real economic value and therefore a miller has a very real incentive
to prevent its escape. Fugitive dust is lost saleable product and is therefore
something we will go to great lengths to prevent.
In addition to the general comments above, we wish to specifically address
two of the questions raised in the ANPR.
54. It has been suggested that OSHA incorporate National Fire Protection
Association (NFPA) standards by reference to address combustible dust
hazards. The Agency is concerned with a number of issues regarding this
approach. These concerns include, but are not limited to:
a. The scope of NFPA standards exceeding OSHA's mandate to protect only
employees.
b. The multitude of mandatory primary references, secondary references,
and other subordinate references in each NFPA standard that could result in an
unnecessary burden on employers.
c. The differences between the various NFPA combustible-dust-related
standards.
d. The frequent updating of standards by NFPA, making the OSHA standard
outdated.
e. The limited availability of older editions of NFPA standards.
f. The difficulty involved in readily updating the consensus standards
referenced in an OSHA combustible dust standard to the current or most
recent edition of the consensus standards.
g. The fact that OSHA cannot legally update NFPA or other consensus
standards used in its rules by referring to the “current” or “most recent”
edition of the consensus standards.How do you think the Agency should make use of NFPA standards in a
prospective OSHA standard? If the NFPA standards are not directly
incorporated by reference into the OSHA standard, would it be appropriate for the OSHA standard to reference NFPA standards as compliance alternatives (e.g., if an employer complies with the referenced NFPA standard applicable to an operation, OSHA would deem the employer to be in compliance with the applicable provision of the OSHA standard)?
NAMA response: We oppose incorporating NFPA standards by reference for the
exact reasons suggested by OSHA in concerns a – g above. To these we would
also add:
h. NFPA standards are not consensus standards that have been proposed,
revised and finalized through a public rulemaking process. The right of citizens
to provide comments is a key component of the US regulatory system. As a
professional society, NFPA membership is not inclusive, and therefore its
standards, by definition, do not reflect all relevant viewpoints.
i. NFPA does not conduct an economic analysis when it considers new
standards, as OSHA is obligated to do. Safety and health resources are not
infinite. Adopting a standard – however well-intentioned – that cannot be
complied with due to overwhelming cost considerations would not add to
safety and health.
j. Multiple NFPA standards on similar topics result in interpretations that are
confusing at best, and contradictory at worst.
56. In 2003, OSHA concluded in its regulatory review that no significant
changes were needed to OSHA's standard on Grain handling facilities at that
time. Are any revisions needed to the portions of this standard that address
fires and explosions? Are revisions to this standard necessary to harmonize it
with the treatment of other dusts? Should the existing provisions of the
standard that address fires and explosions be covered under a combustible
dust rule? If OSHA retained the standard and issued a combustible dust
standard that applied to other facilities and processes, would portions of your
plant be covered by both standards? If so, would this present a problem?
Please explain your response.
NAMA response: We believe the agency’s 2003 regulatory review was, and
continues to be, right on target. We do not believe revisions are necessary.
The current standards are understood and accepted throughout the industry,
and relevant programs in place are clearly successful. We do not support the
creation of a brand new, potentially duplicative, standard.
Finally, we wish to affiliate our comments with the more technically detailed
comments of the National Grain and Feed Association.
NAMA appreciates the opportunity to offer these comments and any
consideration that may be afforded them. If we can provide any additional
information that would be useful, we would appreciate the opportunity to do
so.
Sincerely,
James A. Bair
Vice President
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