Regulatory overview

March 2013

The end of 2012 and beginning of 2013 was a busy time for US regulators and standard-setters as two regulations and one consensus standard made the news. One regulation—long overdue—is final, the second regulation—also long overdue—was proposed, and the consensus standard is in the beginning stages of development.

All three have implications for oilseed processing and edible oil refining.

Final EPA Boiler Mact Rule Released

On December 20, 2012, the US Environmental Protection Agency (EPA) released final clean air standards for large industrial boilers and solid waste incinerators. The soonest the MACT (Maximum Achievable Control Technology) rules can take effect is 2016.

EPA said that of the 1.5 million boilers in the United States, less than 1% (about 2,300) will need to meet numerical emission limits under the new rules. Approximately 13% (about 197,000) will need to follow work-practice standards such as conducting annual tune-ups. The remaining 86% are “clean and not covered by these rules,” the agency noted in its overview of the final regulation.

Industry sources report after reviewing the final rules that those processors who burn natural gas in their boilers will be less affected than those who use other types of fuels such as oil or biomass. The greatest effect is expected to be the ongoing reporting burden.

The US Department of Energy, through its regional Clean Energy Application Centers, will provide site-specific technical and cost information to those facilities that are currently burning coal or oil in their boilers. Likewise, the US Department of Agriculture will work with facilities with boilers that burn biomass to provide information about work-practice standards and how to conduct an energy audit, EPA said.

The effort to regulate boiler emissions began in 2004. A federal appeals court struck down EPA’s original standard in 2007. After reissuing the regulation in 2011, industry groups called the emission limits “unachievable.” EPA retooled the standards after consulting with industry.

An EPA analysis found that the emission reductions from the new rule will prevent up to 8,100 premature deaths; 5,100 heart attacks; and 52,000 asthma attacks per year. That analysis also found that industry will have to spend between $1.3 billion and $1.5 billion annually to meet the standards.

W. Randall Rawson, president and CEO of the American Boiler Manufacturers Association (ABMA) in Vienna, Virginia, commented on the new MACT rules in a written statement. He said: “The over 100 small-business, domestic manufacturer, and supplier members of ABMA have been ready and able since December 2011 to assist boiler users in developing innovative and affordable boiler-room-specific solutions to Industrial Boiler MACT challenges with myriad types of clean, efficient, fuel-flexible, affordable, and technologically-advanced products and equipment.”

More information on the new standards.

FSMA roll-out begins

The other recent regulatory news of note, of course, is the long-delayed beginning of the implementation phase of the Food Safety Modernization Act (FSMA). The Act was signed into law in January 2011; the first two proposed rules were not released by the US Food and Drug Administration (FDA) until January 2013.

The first proposed rule released in January concerns the production and harvesting of produce and, thus, will not affect the vegetable oil processing and refining industries. The second proposed rule, however, will: Titled “Preventive Controls for Human Food,” the proposed rule sets safety requirements for facilities that process, package, or store food for people. (The proposed rule on animal food and feed as well as rules regarding food imports and accreditation of third-party certification has yet to be issued. Those rules are in the pipeline, but as of late January 2013, FDA had not yet announced target release dates.)

At this point, it is too early to tell how the proposed rule may affect oilseed processing and edible oil refining. At press time, industry trade groups were busy analyzing all 680 pages of the proposed rule and preparing comments. (The 120-day comment period closes on May 16, 2013.)

“Our industry should pretty much be in alignment with the guidelines,” said one source, who asked to remain anonymous. “Our customers require us to have HACCP [Hazard Analysis and Critical Control Point] programs.” The bigger question, the source said, concerns the audits mandated by FSMA. “We don’t know how deep and wide FDA will go when they come in to audit or what constitutes validation.”

Robert L. Collette, president of the Institute of Shortening and Edible Oils, a trade group based in Washington, DC, USA, agrees. He added: “Our members already utilize HACCP programs so I agree with the comment about existing alignment. Of key interest is how FDA proposes to expand the concept of preventive controls for areas such as sanitation that are not typically documented as part of traditional HACCP programs.”

The best advice, all industry sources caution, is to be prepared. Do not wait for final implementation. Processors need to get the proper documentation started now if they haven’t already.

New combustible dust standard in development

The final action of note concerns development of a new combustible dust standard. In brief: The National Fire Protection Association (NFPA; Quincy, Massachusetts, USA) is restructuring its work on combustible dust standards. The group aims to develop a new standard (NFPA 652) that applies to every current dust standard and every industry. This effort has potentially significant implications for oilseed processing.

Enter a group of four associations that have banded together to represent the interests of the agricultural industry with regard to NFPA 652: the National Oilseed Processors Association, the National Grain and Feed Association, the Corn Refiners Association, and the International Oil Mill Superintendents Association (IOMSA). On January 4, 2013, the coalition submitted comments to NFPA on a preliminary draft of NFPA 652 (Standard on Combustible Dust), with the assistance of Marc L. Fleischaker, partner and chair emeritus of Arent Fox LLP in Washington, DC, USA.

Background

The intricacies of how NFPA voluntary consensus standards, local fire department codes, and US Occupational Safety and Health Administration (OSHA) regulations mesh are beyond the scope of this news item. Instead, the focus is on the effort, in NFPA’s words, “to provide the basic principles of and requirements for identifying and managing the fire and explosion hazards of combustible dusts and particulate solids” by developing NFPA 652.

NFPA currently oversees five major dust standards targeting specific types of dust:

• NFPA 61, Standard for the Prevention of Fires and Dust Explosions in Agricultural and Food Processing Facilities;
• NFPA 484, Standard for Combustible Metals;
• NFPA 654, Standard for the Prevention of Fire and Dust Explosions from the Manufacturing, Processing, and Handling of Combustible Particulate Solids;
• NFPA 655, Standard for Preventing Sulfur Fires and Explosions; and
• NFPA 664, Standard for the Prevention of Fires and Explosions in Wood Processing and Woodworking Facilities.

NFPA’s multiple combustible dust standards were a matter of background discussion when OSHA issued an Advanced Notice of Proposed Rulemaking for combustible dusts in October 2009. Users could become confused when seeking the appropriate requirements to follow, OSHA reasoned, and could in some cases obtain either inconsistent or possibly conflicting guidance.

“NFPA created a new committee structure in response to user concerns,” explained Guy R. Colonna, division manager of NFPA’s Industrial & Chemical Engineering group. That new structure provides two things, he said: (1) an oversight body to work with all of the committees and standards to encourage and drive consistency and uniformity, and (2) a committee focused only on defining the fundamental process by which combustible dusts are identified, evaluated, and controlled. “It is understood that for some industries and dust types additional precautions could apply. Those measures will remain with the process-specific or dust type-specific standards,” he noted.

Implications for oilseed processing

IOMSA and the other coalition member associations have all been represented on the NFPA 61 and NFPA 654 committees for many years.

“NFPA 61, in particular, has been written and rewritten with significant grain industry input,” notes Marc Fleischaker in the coalition’s comment letter. This is the root of one major concern of the coalition: Might the complexity added by the proposed new standard end up fostering confusion and actually lead to less safe conditions?

The coalition believes that a generic standard, such as NFPA 652, should not override a standard developed specifically for a particular industry, such as NFPA 61. Further, “there is a specific federal OSHA standard involving grain handling facilities, which contains requirements that are not consistent with the draft NFPA 652 standard,” the comment letter points out.

These inconsistencies, the coalition says, could lead to a facility being deemed to be compliant with the OSHA standard (29 CFR 1910.272) but not with NFPA 652, or the reverse.

The coalition also argues that a phase-in or implementation schedule for hazard assessment be provided for the new standard. “Certainly, NFPA needs to be careful about adopting standards with effective dates that make compliance impossible,” the comment letter suggests.

Further comments cover various inconsistencies in the draft document as well as questions concerning several explosibility and combustibility tests called for in the draft.

Timetable

The standard development process for NFPA 652 is in its early stages. NFPA received approximately 150 comments on the first draft by the closing date of January 4, 2013, according to Colonna. A report on the first draft is due on September 6, 2013. The second draft comment period will close on November 15, 2013. The final standard is scheduled for completion in the third quarter of 2014. At that point, it will be presented for action at the next NFPA Technical Meeting, with publication expected in 2015.

“We are committed to the coalition’s work to ensure that the final standard is as favorable to oilseed processing as possible,” Doug Kennedy, current IOMSA president, affirmed.

The new OSHA rules on combustible dust are also well off in the future. The official regulatory calendar shows that the agency expects to begin its Small Business Regulatory Enforcement Fairness Act review in October 2013. That review takes 90 days. Only after that can OSHA publish the Notice of Proposed Rulemaking with regulatory text to which public comments can be submitted. Whether—and when—a proposed rule will be published in 2014 remains to be seen.

Sidebar–OSHA and combustible dust

Applicable requirements of the US Occupational Safety and Health Administration (OSHA) include:

• §1910.22 Housekeeping
• §1910.307 Hazardous Locations
• §1910.1200 Hazard Communication
• §1910.269 Electric Power Generation, Transmission and Distribution (coal handling)
• §1910.272 Grain Handling Facilities
• General Duty Clause, Section 5(a)(1) of the Occupational Safety and Health Act (Employers must keep workplaces free from recognized hazards likely to cause death or serious physical harm.)

Complete OSHA fact sheet on combustible dust and  OSHA’s Hazard Communication Guidance for Combustible Dusts are available. The preliminary draft of the proposed new National Fire Protection Association’s standard (NFPA 652) is available.