In late-October the U.S. Court of Appeals for the District of Columbia issued an opinion supporting the Occupational Safety and Health Administration on regulating businesses that handle and process grain and other agricultural products which create dust.

The case was a challenge to OSHA's revised Hazard Communication Standard, which in effect states that grain dust is a hazardous chemical. But you may want a little background on how the Government's regulatory wheels spin before this makes much sense.

OSHA already sets workplace requirements for the control of grain dust which may create fires, explosions and safety hazards associated with grain handling facilities.  OSHA's present rule applies to grain elevators, feed mills, flour mills, rice mills, pelletizing plants, dry corn mills, soybean flaking operations, and dry grinding operations of soy cake.  The 1987 rule made it clear that such facilities are to control fugitive grain dust which was defined as combustible dust particles of a certain size.

Also, OSHA has been told by Congress to keep its hands off of farm grain storage operations with 10 or fewer employees.

The OSHA Act of 1970 allows the Secretary of Labor to promulgate work place safety and health standards. The Act wants "…to insure that employees are apprised of all hazards to which they are exposed."

With this background, OSHA in 2012 issued a "Hazard Communication Standard." The revised standard simply required all employers across industries to develop a program for classifying the dangers of workplace hazardous chemicals and conveying those dangers to their employees.  

The National Oilseed Processors and the American Feed Industry Association challenged the rule. OSHA said it was issuing the rule to conform to the Globally Harmonized System.

OSHA said that combustible dust is a dangerous hazardous chemical. OSHA further noted that "dusts are known to be subject to deflagration and subsequent explosion…" However, OSHA did not include in this proposed HCS rule a definition of combustible dust.

The petitioners objected to the HCS rule and noted that OSHA in 2009 issued a proposed rule on combustible dust which has yet to be issued by the Agency.

Incredible admission
The three-judge panel on the court made an incredible admission when it suggested it has difficulty with such cases involving dust from agricultural products. It said such regulations are "…rooted in inferences from complex scientific and factual data, which often necessarily involve highly speculative projections of technological development in areas wholly lacking in scientific and economic certainty."

In essence the court was saying it does not understand the factual background at all.

The petitioners contended they had no opportunity to comment on the inclusion of combustible dust from grain in the final HCS rule because combustible grain dust was not mentioned in the proposed rule. 

The court made it clear that industry knows very well what constitutes combustible dust. It tells industry petitioners that they need only to read from OSHA's National Emphasis Program which defines combustible dust as well as agricultural dust.

Agricultural dust is defined as "any finely divided solid agricultural material 420 microns or smaller in diameter…that presents a fire or explosion hazard when dispersed and ignited in air." The petitioners were told they need not worry about the HCS not defining combustible dust because there were plenty of definitions and industry only need to read and follow them.

The trade associations also claimed the new rule violated constitutional due process because the term "combustible dust" is not sufficiently clear. The court made short work of this argument by simply saying your argument fails on the merits.

OSHA's rule and the Court of Appeals make it clear combustible dust is a hazardous chemical. Both made clear that employers must control fugitive dust which may become combustible. As a result, grain dust must be treated just as any hazardous chemical release.

Gary H. Baise is a principal at OFW Law (Olsson Frank Weeda Terman Matz P.C.). This article first appeared in Farm Futures magazine. The opinions presented here are expressly those of the author. For more information, go to www.OFWlaw.com.