“Speed limit 55. It’s not just a good idea. It’s the law.” — Advertising Council and U.S. Department of Transportation (1977)
Ever since the National Fire Protection Association (NFPA) published the 2019 Edition of NFPA 652, Standard on the Fundamentals of Combustible Dust, which states in §184.108.40.206 that a Dust Hazard Analysis (DHA) must be completed for any existing process by September 7, 2020, organizations have been in a tizzy about getting a DHA done or being out of compliance.
“Compliance” is a tricky thing. It doesn’t mean anything unless there are penalties for being “out of compliance”. Some unscrupulous consultants have used the fear of being “out of compliance” to hard-sell services. “You need to get your DHA done, or you’ll be cited by OSHA.”
There are excellent reasons to do a DHA, but fear of citation by OSHA is not one of them.
The History of DHAs
NFPA 652 is a new standard. The initial issue, the 2016 Edition, became effective on September 7, 2015, and called for DHAs in Chapter 7. There was no date for the DHAs to be done, just a requirement that they must be done.
When NFPA 652 first came out in 2015, it was in addition to a much older standard, NFPA 654, Standard for the Prevention of Fire and Dust Explosions from the Manufacturing, Processing, and Handling of Combustible Particulate Solids. The initial edition of NFPA 654 became effective in 1945. It has undergone many revisions and as recently as the 2013 Edition, the general requirements in §4.2 called for a Process Hazard Analysis (PHA) of processes using combustible dusts. The new standard, NFPA 652, became effective in 2015, so the next edition of NFPA 654, the 2017 Edition, which became effective on June 2, 2016, changed its terminology, referring to DHAs rather than PHAs.
All of this predated the most current standard of NFPA 652, 2019 Edition, which became effective on May 24, 2018. This is the NFPA standard that declared the completion date for DHAs as September 7, 2020. The date was not arbitrary. It was the five-year anniversary of the effective date of the original edition of NFPA 652.
Enforcing the September 7, 2020 Due Date
NFPA does not enforce the due date. As part of its boilerplate at the beginning of each of its standards, NFPA states, “The NFPA has no power, nor does it undertake, to police or enforce compliance with the contents of NFPA standards.”
What about OSHA? On occasion, OSHA either incorporates consensus standards by reference, as in the case of NFPA 101, The Life Safety Code, which is referred to in 29 CFR 1910 Subpart E. On occasion, OSHA takes the text from a consensus standard and makes it the regulation, such as NFPA 30, 1969 Edition, Flammable and Combustible Liquids Code, which became the text for 29 CFR 1910.106, Flammable Liquids.
Whether OSHA drafts the language of the regulation itself, uses the language from a consensus standard, or incorporates the standard by reference, the draft regulation must go through the entire rulemaking process before it can be adopted. So, OSHA refers to a specific edition. They don’t want a third-party watering down or changing a regulation after it has been promulgated.
The NFPA standards on combustible dust have not been incorporated by reference or adopted as the text of any OSHA regulation.
What About the General Duty Clause?
When there is no regulation in place, OSHA still enforces the requirement for a safe workplace using the law itself. In Section 5(a)1 of the OSH Act, 29 USC § 654, the general duty clause states:
Each employer shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.
There are four elements necessary for OSHA to cite an employer under the general duty clause:
- The employer failed to keep the workplace free of a hazard to which employees of that employer were exposed.
- The hazard was recognized.
- The hazard was causing or was likely to cause death or serious physical harm.
- There was a feasible and useful method to correct the hazard.
The general duty clause does not allow or require OSHA to enforce the provisions of every consensus standard that gets developed. However, OSHA does use consensus standards to demonstrate that the hazard was recognized and that there was a feasible and useful method to correct the hazard. Employers need to take reasonable steps to prevent or abate a recognized hazard, but that doesn’t mean they have to do it the way any particular consensus standard stipulates. It’s just easier to convince OSHA that they have taken reasonable steps when they can show that they have followed a standard.
Does Anyone Enforce NFPA 652?
If not NFPA and not OSHA, then who enforces NFPA 652? There are two other parties that have an interest. One is the AHJ, the “authority having jurisdiction”. In many communities, this is the fire marshal or the local zoning and permitting department. Unlike federal agencies, the AHJ does not have to go through the federal rulemaking process required by the Administrative Procedure Act. An AHJ can simply decide, “we require facilities in our jurisdiction to follow NFPA 652.” Or not. Facilities should talk to them and find out what they expect. Unlike federal agencies, which post all of their regulations and letters of interpretation online, local agencies aren’t always as transparent.
The other interested party is the insurer. Their enforcement authority comes in the form of premium rates and the ability to cancel insurance. In all candor, insurance companies do more to drive workplace safety than most government organizations, because of their keen desire to drive down claims and avoid liability. If an insurance inspection says “Do a DHA or we’ll not renew your insurance policy,” that carries a lot of weight.
A DHA is a Good Idea…
To be clear, conducting a DHA is a valuable exercise for any facility that uses combustible dusts. It’s a systematic review that methodically identifies combustible dust hazards—fires, flash fires, and explosions—and evaluates whether appropriate mitigation and prevention measures have been put in place. The committee that wrote NFPA 652—the voting members, the alternates, and the nonvoting members—are all really smart people who know a lot about the hazards of combustible dusts. To ignore their collective wisdom is just silly.
…But It’s Not the Law
A good reason to do a DHA is because it’s a good idea. A bad reason to do a DHA is because of the fear of an OSHA citation. As one OSHA official put it, “A few eager area offices want to cite the lack of a DHA. We’d be laughed out of court.” That is assuming that an employer decided to undergo the expense of taking it to court.
DHAs. They’re not the law, but they’re a good idea. So, if you use combustible dusts and you haven’t done one, do it.