Follow-Up Questions and Answers to Combustible Dust Issue

We have received questions from SLMA members regarding the previously announced NFPA 652 Dust Hazard Analysis that is due September 7, 2020. Below are some clarifying answers from SLMA's OSHA Counsel at Kilpatrick Townsend. Additional information regarding OSHA's application of the NFPA standard can be found in the OSHA Technical Manual available at: https://www.osha.gov/sites/default/files/otm_secIV_chap6.pdf. 

SLMA Member Comment: 

We have been advised not to have the DHA performed by our safety consultants since the cost is generally high and would not really benefit us from a liability standpoint. Not to mention there is no legal requirement under OSHA standards. 

Should a fire or explosion occur with or without a DHA having been performed, we would very likely be cited under the general clause duty anyway. 

Kilpatrick Townsend Response: 

You are correct that OSHA states in various places that NFPA standards are voluntary and recommended, but not required under the law. However, OSHA's enforcement practices are a different story. As early as January 2018, OSHA started citing employers under the General Duty clause for failing to conduct a DHA. Whether it's codified or not, NFPA is the standard that OSHA is comparing facilities against. 

I agree that if a fire or explosion occurs, a DHA is the least of OSHA's concerns. The DHA issue, hoever, is likely to come up if there's an inspection instigated by an employee compaint or the NEP, when the OSHA officer has time to critically review the facility's risk hazard anaysis process and the housekeeping plan and inspect the facility. If the OSHA officer concludes that the facility has not adequately addressed the explosion/deflagration hazards, the OSHA officer can cite the absence of a DHA as the basis for a general duty violation. 

Whether to do a DHA is not a straightforward decision, and as you noted there are many competing factors. For some facilities, the most important factor is minimizing OSHA liability and avoiding repeat or willful violations, which they can do by completing a DHA as required by NFPA. Cost, however, is also a significant consideration. The current maximum OSHA penalty for a serious violation is around $13,000. If safety consultants are charging in that ballpark and upwards, you may reasonably decide that a DHA is simply not worth it. To your point about outside safety consultants recommendations' leading to more liability than if the DHA had never been performed, if there is a legitimate deficiency that has not been timely or reasonably addressed, OSHA inspectors are capable of figuring it out and they're relying on NFPA in doing that. If that particular concern is an obstacle to completing the DHA, it can be addressed during the initial DHA planning process. 

This is ultimately a business decision, so I hope that this provides a clearer picture of the risks and benefits and upsides and downsides of conducting a DHA versus not. Please let me know if you have any additional questions or concerns. 

SLMA Member Comment:

Are we just supposed to keep this on file or is there a specific department that we're supposed to send it to?

Kilpatrick Townsend Response:

The facility should keep the DHA on file in an easily accessible location in case OSHA or State OSHA (where applicable) requests it as part of an inspection. There's no requirement to send it on to OSHA or any other agency at this time.