Today’s episode of the Dust Safety Science podcast is Part Two of a fireside chat with Jeffrey Wanko, Director of the Office of Chemical Process Safety and Enforcement Initiatives at the Occupational Safety and Health Administration. Today, he talks about the re-release of the Combustible Dust National Emphasis Program (NEP) in February 2023 and answers questions about what’s changed and what industries and NAICS codes were now included.
What Brought About the Most Recent Re-Release of the National Emphasis Program?
Jeff explained that the loss of key court cases involving Cooper Tire and American Phoenix was the catalyst for change. Judges were also critical of the Emphasis Program, but deemed certain teaching material mandatory. In addition, compliance officers were questioned if they neglected to perform any mentioned educational tasks. The 2007-2008 version of the NEP listed tests that could be conducted in the Salt Lake City lab, but OSHA’s role is not to design or inspect establishments; its focus is on identifying hazards.
“So, this laundry list of MIE, MEC- we didn’t need that,” he said. “[So the judge would ask] why is it there and why do you have it there if you’re not going to do it? We quickly found that there were some problems with that narrative. So that led us to [taking] a harder look. Let’s really evaluate this as a complete unit. Let’s look at our performance, where we’re seeing the biggest bang for our buck under this Emphasis Program. So, all that came into play.”
They removed the educational material from the National Emphasis Program and relocated it to the appropriate places such as the OSHA technical manual or the training program, as it was not suitable for inclusion in the Emphasis Program document. Additionally, they analyzed their enforcement history in depth, looking at where violations occurred, where they were unable to inspect, and which industries lacked combustible dust hazards.
“We also evaluated incidents in industries not on our list. Based on this analysis, we decided to remove some industries from the list and add others.”
They combined the two lists to create a single, more straightforward and process-oriented Emphasis Program. The previous version included teaching materials that couldn’t be defended, so they were removed and the focus shifted to creating inspections that could withstand scrutiny from administrative law judges or the OSHA Review Commission. They also addressed sampling problems that arose during the Cooper Tire case by emphasizing the importance of consistent and thorough sampling, which is now outlined in the technical manual and incorporated into our training.
“Although it took some time, we believe that our new document is much more defensible and will lead to more successful inspections,” Jeff said.
Why Was Fossil Fuel Electric Power Generation Removed From the List of NAICS Codes?
“So one of the things that we really wanted to look out for was how dilute we wanted the list to be. We looked at all of the data where we were seeing violations and we just had to cut it at a certain level or else we were just getting too dilute,” Jeff explained. “It means that we’re going to have people sent out and not have successful attempts at an inspection. So, we had to draw the line somewhere. Based on our experience, based on what we were finding out in the real world, that one was dropped. We just weren’t seeing the bang, the bang for the buck. Sorry for that lousy, lousy pun. They just weren’t seeing it.”
He added that once OSHA starts receiving more resources and becomes better equipped, it can consider adding back certain elements. However, there is a long way to go in terms of retraining the agency. Like many others, the pandemic caused them to lose a lot of experienced personnel, including those who moved into management positions or resigned during the Great Resignation. As a result, about 19% of its workforce has less than a year of experience with OSHA.
“Our focus is on retraining staff to enable them to conduct complex inspections effectively. Given these circumstances, we can’t support certain inspections and allocate resources where they may not yield a rich inspection. This is the reason why some elements were removed.”
Does the NEP Include Grain Handling as a Targeted Industry?
Jeff said that the NEP does target grain handling, but not necessarily the larger elevators such as Westwego. Region 7 and Region 6 have specific Emphasis Programs for those elevators under 1910-272. However, the NEP targets grain and farm supply wholesalers, including those who distribute seed and grain to farmers. While 1910-272 is one of the more common citations under the NEP, it falls under the General Industry Office. 272 addresses hazards such as engulfment and lockout of sweep augers, which are not associated with combustible dust. The Emphasis Program focuses on manufacturing and dynamic processes for handling dusts, such as protecting bucket elevators, headhouses, and conveyors.
How Does NFPA’s Development of the Multi-Combustible Standards Fit in With OSHA Moving Forward?
“I’ve got to say NFPA is doing a great job,” Jeff said.
OSHA has not been able to adopt industry standards by reference since 1974. Nowadays, it must undergo the Administrative Procedures Act for rulemaking, which can be extremely difficult and time-consuming.
“For instance, it took us nine years to issue the grain standard after the big grain elevator explosions in 1977 and 78, with Westwego and Galveston being the two major ones that I can recall. We are now required to write our own standards based on NFPA, API, or any other relevant standards, but in our own language. NFPA and other consensus standards are essential for industry to learn about hazards and how to mitigate them.”
In the OSHA Act of 1970, there is a sentence called the General Duty Clause, Section 5A1, which states that employers are responsible for controlling hazards. Jeff and his team often cite this clause, particularly in the case of dust, as they can point to consensus standards that indicate a hazard with a particular operation, process, or piece of equipment, and provide feasible means of abatement. As a result, industry recognizes these hazards and has workable solutions to mitigate them.
NFPA standards play a role in the National Enforcement Program by providing feasible means of abatement and identifying hazards recognized by the industry. It’s important to note that while OSHA requests a Dust Hazard Analysis (DHA), failure to do one is not a violation. Therefore, OSHA inspectors will not directly cite the absence of a DHA, but it could serve as a guidepost during an audit.
Conclusion
“There is no question in my mind that OSHA makes a difference,” Jeff said. “I truly believe that we are saving lives every day. And that’s what I get up to do in the morning. We can certainly do a heck of a lot more. We’re all in this together.”
If you would like to discuss further, leave your thoughts in the comments section below. You can also reach Jeff Wanko directly:
LinkedIn: https://www.linkedin.com/in/jeff-wanko-73885b1/
If you have questions about the contents of this or any other podcast episode, you can go to our ‘Questions from the Community’ page and submit a text message or video recording. We will then bring someone on to answer these questions in a future episode.
Resources mentioned
Dust Safety Science
Combustible Dust Incident Database
Dust Safety Science Podcast
Questions from the Community
Dust Safety Academy
Dust Safety Professionals
Dust Safety Share
Organizations
Occupational Safety and Health Administration
U.S. Chemical Safety Board
Incidents
Westwego Explosion
Galveston Grain Elevator Explosion
Previous Episode
DSS223: History of the Combustible Dust National Emphasis Program with Jeffrey Wanko
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