OSHA UPDATE Combustible Dust and HCS 2012

Transcription

1 OSHA UPDATE Combustible Dust and HCS PPSA Annual Safety and Health Conference Lawrence P. Halprin, Partner Keller and Heckman LLP Washington, DC Washington, D.C. Brussels San Francisco Shanghai

2 OVERVIEW Combustible Dust NFPA Activity OSHA Activity Other Activities HCS The GHS Changes and Implementation UN GHS Activities 2

3 THE COMBUSTIBLE DUST ISSUE Imperial Sugar, other tragic incidents CSB report on C.D : 281 incidents, 119 fatalities, 718 injured; 5 fatalities/ year priority? significant risk? Media Congress bills, hearings OSHA - NEP, ANPRM, SBREFA? NFPA UN GHS Subcommittee 3

4 OSHA CD Activities 4 Enforcement NEP, Complaints and Ad Hoc CD Rulemaking SBREFA - Waiting for NFPA 652? Other Pending Rulemakings Walking Surfaces: final stage, legal hurdle for CD I2P2: uncertain Completed Rulemakings HCS 2012: litigation pending, partially resolved

5 OSHA -- CD Under HCS 2012 Coverage HCS 1994? HCS 2012: yes unless grain industry prevails in litigation How Treated Under HCS 2012 Physical hazard that isn t a physical hazard Required label and SDS Content Signal word: warning Hazard statement: May form combustible dust concentrations in air Pictogram: none Precautionary Statements: Label, none; SDS, appropriate. Scope: CD as shipped or through foreseeable downstream use 5

6 OSHA -- CD Under HCS 2012 One-time label option (not limited to CD) Not hazardous as shipped (2 x 4, paper rolls) Converted to hazardous chemical downstream (not an article ) (f)(4): Solid metal, solid wood, plastic items Section C.4.30, fn. 2: Expands scope for CD hazards Paper rolls, slurries (ACC ltr) 6

7 OSHA -- CD Under HCS 2012 One-time label -- Optional additional language Additional, consistent language When chemical does not present a CD hazard in the form in which it is shipped If small particles are generated during further processing, handling or by other means, may form combustible dust concentrations in air (ACC ltr) 7

8 NFPA CD Activities Were 4 Primary CD Committees and 5 Primary NFPA CD Standards NFPA 61 food and agriculture NFPA metals NFPA 654 general (including paper) NFPA sulfur NFPA 664 wood processing Same pulp and paper mill covered by 2 standards NFPA 654 general (including paper) NFPA 664 wood processing 8

9 NFPA CD Activities Created NFPA 652. Why? Other standards incomplete. Other standards inconsistent. OSHA said they couldn t be used for OSHA std Result: mill covered by 3 standards Recent NFPA Activities New tech. cmte and std in process: NFPA 652 New tech. CD correlating cmte. Numerous sponsored conferences Accelerated NFPA 61 and 654 revision cycles by 1 yr 9

10 NFPA 652 Activity Schedule Key Dates for the Cycle * *The 11/15/2013 public comment deadline is advanced to 10/11/2013 for hard copy filings. 10

11 NFPA 652 Fundamental C.D. Standard Chapter 1 Administration (proposed) Goal Provide safety measures to prevent and mitigate fires and dust explosions in facilities that handle combustible particulate solids Scope Combustible dusts and particulate solids Fire, flash fire and explosion Conflicts Would generally preempt other CD standards Retroactivity Generally yes as to programs, no as to design 11

12 NFPA 652 Fundamental C.D. Standard Chapter 3 Definitions (proposed) Combustible Particulate Solid: Any solid material composed of distinct particles or pieces, regardless of size, shape, or chemical composition that presents a fire hazard. Dust: A particulate material composed of particles typically having dimensions from effectively zero to maximum upper dimension, depending on particle shape, in the range of 200 microns to 2000 microns (2 mm). CD: A finely divided combustible particulate solid that presents a flash fire or explosion hazard when suspended in air or the process-specific oxidizing medium over a range of concentrations. 12

13 NFPA 652 Fundamental C.D. Standard Chapter 3 Definitions (proposed) Threshold Housekeeping Dust Accumulation The maximum quantity of dust permitted to be present before cleanup is required [as determined in industry/commodity-specific standards]. Chapter 7: the threshold housekeeping dust accumulation that would present a potential for flash-fire exposure... Electrical Classification is a separate determination 13

14 NFPA 652 Fundamental C.D. Standard Chapter 4 Gen Requirements and Compliance Options (proposed) The prescriptive option in accordance with Chapter 5, Hazard Identification Chapter 7, Process Hazards Analysis Chapter 8, Hazard Management Chapter 9, Management Systems Prescriptive provisions of applicable industry/commodity-specific standards. 14

15 NFPA 652 Fundamental C.D. Standard Chapter 4 Gen Requirements and Compliance Options (proposed) The performance-based option in accordance with Chapter 6 Extensive analytical and documentation requirements not in NFPA 654 The prescriptive requirements in: Housekeeping in Section 8.4 PPE in Section 8.6 Management Systems in Chapter 9 A combination of the 2 options 15

16 NFPA 652 Fundamental C.D. Standard Chapter 5 Hazard Identification Sampling Plan Determine whether combustible and explosible If don t know, have to test, using specified test methods or equivalent methods Use of historical and representative data permitted 16

17 NFPA 652 Fundamental C.D. Standard Chapter 7 Process Hazards Analysis Not OSHA PSM, possibly PSM lite Qualified person What if analysis locations, scenarios, consequences 17

18 NFPA 652 Fundamental C.D. Standard Chapter 8 Hazard Management Design measures Explosion protection: bldg, room, silos and bins, pneumatic conveying and dust collection equipment (special rules if < 8 ft3 or enclosureless DC), central vacuum systems Limiting accumulations inside transport equipment and dust containment Separation by distance (engineering analysis), segregation and detachment Separation of high and low risk operations Maintenance Monitoring bearings 18

19 NFPA 652 Fundamental C.D. Standard Chapter 8 Hazard Management Housekeeping Max accumulation: routine and upset conditions Methods Vacuum preferred specs for vacuums Then manual sweeping Conditional use of compressed air blow downs Operating ranges Start up and shutdown criteria Dust collectors (documented, maintained air flow) Max permitted transport/flow rates for certain materials in single feed stream to vessel Temp control of hot surfaces 19

20 UN GHS SUBCOMMITTEE AND CD HCS 2012 includes CD as classified hazard EU: CD included in SDS if SDS required US Wanted GHS Coverage of CD Chaired GHS Working Group on dust explosion hazards Developed paper Dust explosion hazards guidance 12/2012 UN Subcommittee approved new SDS Section 7 (Handling and storage) guidance (new language underlined): Provide advice that draws attention to operations and conditions which create new risks by altering the properties of the substance or mixture, and to appropriate countermeasures 20

21 UN SUBCOMMITTEE ON THE GHS Risk v. inherent hazard? No reference to CD? Provide advice that draws attention to operations and conditions which create new risks by altering the properties of the substance or mixture, and to appropriate countermeasures Altering the properties? Particle size? Change in state? Chemical reaction? Nano? David Michaels, May 21, 2013 speech In response to a questioner asking for OSHA guidance on how to list nanomaterials on safety data sheets, Michaels said the agency does not have the tools, expertise, or manpower to provide that guidance. BNA Reporter 21

22 UN GHS Model international standard Initial Version: Pub 12/2002 Revised every 2 years; 12/2012, Rev. 5 OSHA HCS 2012 based on Rev. 3 (2008) Scope Covers classification, labeling and SDS for hazardous chemicals Does not cover local issues: training, trade secrets Ongoing global implementation 22

23 UN GHS AND HCS 2012 Guiding Principles The Theory Harmonization (not uniformity) No reduction in existing protection Self-classification based on weight of evidence No single study rule No adoption of IARC or NTP listings No required testing 23

24 UN GHS AND HCS 2012 Guiding Principles The Reality Harmonization (not uniformity) and no reduction in existing protection Different perspectives in EU, US and California GHS provides compliance options for some hazards Every country/region insisted on retaining some unique aspects of its hazcom system US maintained coverage of 3 hazards not in the GHS 24

25 UN GHS AND HCS 2012 Guiding Principles GHS based on EU system, which used same regulatory scheme for hazard communication and chemical inventory EU has a huge list of harmonized classifications OSHA has 15 +/- substance-specific standards Self-classification No required testing EU requires physical hazard testing California apparently wants to require chemical analysis and physical hazards testing? 25

26 UN GHS AND HCS 2012 Expected Benefits Improve chemical safety (esp. in workplace) Reduce trade barriers for participants Increase trade barriers for non-participants Implement REACH and support TSCA reform Provide full employment for consultants and attorneys Costs Extensive new research of publicly available info Review of every product formulation Revision of every MSDS/SDS and product label and creating new ones for newly covered chemicals Extensive training 26

27 The Training Challenge Deodorant - Long Lasting Stick, Mountain Rush, 3.25 oz 16 oz. v. 1 lb. 27

28 UN GHS AND HCS 2012 Concerns Enormous costs Never any evidence that EU workplaces were safer than those in the US Highly complex new system Serious compliance problems with existing rule OSHA is still figuring out what it means Creates confusion Requires expertise Discourages compliance 28

29 Making Sense of The Complex Definition of Hazardous Chemical Current HCS Any chemical which is classified as a (1) A physical hazard or Closed list (2) A health hazard Open list: defined as chemical posing acute or chronic health effects Amended HCS Any chemical which is classified as: (1) A physical hazard, Closed list, but HNOCs (2) A health hazard, Closed list, but HNOCs (3) A simple asphyxiant, (4) A combustible dust, (5) A pyrophoric gas, or (6) Hazards not otherwise classified (HNOCs) 29

30 Physical Hazards Comparison Current HCS Compressed gas Explosive Flammable gas Flammable aerosol Flammable liquid and Combustible liquid Flammable solid Organic peroxide Oxidizer Pyrophoric Unstable (reactive) Water-reactive Amended HCS Gases under pressure: 4 groups Compressed gas, liquified gas, refrig. liquified gas, dissolved gas Explosives: Div Flammable gases: 1, 2 Flammable aerosols: 1, 2 Flammable liquids: 1, 2, 3, 4 Flammable solids: 1, 2 Organic peroxides: Types A-F Oxidizing gases: 1 Oxidizing liquids: 1, 2, 3 Oxidizing solids: 1, 2, 3 Pyrophoric liquids: 1 Pyrophoric solids: 1 Self-reactive chemicals: Types A-G Self-heating chemicals: 1, 2 Chemicals which, in contact with water, emit flammable gases: 1, 2, 3 Corrosive to metals: 1 30

31 Health Hazards Comparison Current HCS Highly toxic, toxic Corrosives Irritants Sensitizers Carcinogens Reproductive toxins Hepatoxins, nephrotoxins, neurotoxins, agents which act on the hematopoietic system, agents which damage the lungs, cutaneous hazards, eye hazards Amended HCS Acute toxicity: 1, 2, 3, 4 Skin corrosion/irritation: 1A, 1B, 1C, 2 Serious eye damage/eye irritation: 1, 2 Respiratory sensitization: 1A, 1B Skin sensitization: 1A, 1B Carcinogenicity: 1A, 1B, 2 Germ cell mutagenicity: 1A, 1B, 2 Reproductive toxicity: 1A, 1B, 2, Effects on or via lactation Specific target organ toxicity-single exposure: 1, 2, 3 Specific target organ toxicity-repeated or prolonged exposure: 1, 2 Aspiration hazard: 1 31

32 UN GHS AND HCS 2012 Concerns Confusion of multiple systems in use at same time Confusion over change in classification of chemicals in use for a long time Inconsistent interpretation and enforcement Full benefits of harmonization not realized 32

33 UN GHS AND HCS 2012 Concerns Will audience pay attention to the information? Some pictograms will help, but probably not the star man How useful is information based on inherent hazards and default presumptions rather than risk assessments? Sound bites: Right to know v. Right to understand? Will manufacturers provide useful underlying data? 33

34 Hazards Not Otherwise Classified HNOCs -- TBD Purpose? OSHA: Maintain pre-existing coverage Industry view: bypass required rulemaking Definition vague and unintelligible An adverse physical or health effect, identified through evaluation of scientific evidence during the classification process, that does not meet the specified classification criteria for the listed physical hazards and health hazards Impact: convert non-hazardous to hazardous? Subject of litigation 34

35 OSHA HCS-2012 Compliance Deadlines In Theory May 25, 2012: Effective Date and began transition period Retroactive label updates Prospective label updates: diligence + 6 months May comply with HCS-1994, HCS-2012 or both (meaning?) Change in preemption clause of HCS (in litigation) December 1, 2013 Train all exposed employees on the new label elements and SDS format by 12/1/2013 June 1, 2015: General compliance deadline Exception: until 12/1/2015, distributors may ship products that were labeled and shipped by manufacturers under the old system prior to 6/1/2015. June 1, 2016 Update alternative workplace labeling and hazard communication programs as necessary, and provide additional employee training for changes, including newly identified (due to HCS-2012) hazards 35

36 OSHA HCS-2012 Compliance Deadlines In Reality Accelerated Compliance Scenario No. 1 What happens when HCS 2012 labels and SDS arrive and employees have Qs? Accelerated Compliance Scenario No. 2 What happens when your chemical supplier identifies a new hazard per HCS 2012 in the supplied chemical? Options? Modify SDS & label? Assume classification responsibilities? Take the risky position OSHA is wrong? Decisions must consider tort law 36

37 Conclusion Combustible dust is currently subject to legal requirements imposed by OSHA, Tort law and Contract law OSHA C.D. Standard appears inevitable; more complex NFPA standard is inevitable HCS 2012 should improve workplace safety Most complex standard ever adopted by OSHA Implementation will pose challenges GHS will continue to be revised and industry needs to monitor and participate in that activity 37

38 Thank you Lawrence P. Halprin, Partner Keller and Heckman LLP 1001 G Street, N.W. Washington, DC halprin@khlaw.com Washington, D.C. Brussels San Francisco Shanghai