Regulations Amending Certain Regulations Made Under the Canada Labour Code: SOR/2018-137
Canada Gazette, Part II, Volume 152, Number 14
June 25, 2018
CANADA LABOUR CODE
P.C. 2018-869 June 22, 2018
Whereas, pursuant to subsection 157(3) footnote a of the Canada Labour Code footnote b, regulations of the Governor in Council under subsection 157(1) footnote c or (1.1) footnote d of that Act are made in respect of occupational safety and health of employees employed on ships, trains or aircraft, while in operation, on the recommendation of the Minister of Labour and the Minister of Transport;
Therefore, Her Excellency the Governor General in Council, on the recommendation of the Minister of Labour and the Minister of Transport, pursuant to section 157 footnote e of the Canada Labour Code footnote b, makes the annexed Regulations Amending Certain Regulations Made Under the Canada Labour Code.
Regulations Amending Certain Regulations Made Under the Canada Labour Code
Canada Occupational Health and Safety Regulations
1 Paragraphs 10.19(1)(a) and (b) of the Canada Occupational Health and Safety Regulations footnote 1 are replaced by the following:
- (a) an airborne chemical agent, other than airborne grain dust, airborne flour dust and airborne asbestos fibres, in excess of the value for that chemical agent adopted by the American Conference of Governmental Industrial Hygienists, in its publication entitled Threshold Limit Values (TLVs) and Biological Exposure Indices (BEIs), as amended from time to time;
- (b) airborne grain dust in excess of 4 mg/m3; or
- (c) airborne flour dust in excess of 3 mg/m3.
Maritime Occupational Health and Safety Regulations
2 (1) Paragraphs 255(1)(a) and (b) of the Maritime Occupational Health and Safety Regulations footnote 2 are replaced by the following:
- (a) an airborne chemical agent, other than airborne grain dust, airborne flour dust, and airborne asbestos fibres, in excess of the value for that chemical agent adopted by the most recent edition of the American Conference of Governmental Industrial Hygienists publication entitled Threshold Limit Values (TLVs) and Biological Exposure Indices (BEIs);
- (b) airborne grain dust in excess of 4 mg/m3;
- (c) airborne flour dust in excess of 3 mg/m3; or
(2) The portion of subsection 255(2) of the Regulations before paragraph (a) is replaced by the following:
(2) If there is a likelihood that the concentration of an airborne chemical agent may exceed the applicable value referred to in paragraph (1)(a), (b) or (c), the concentration of airborne asbestos fibres may exceed zero or there is a concentration of an airborne hazardous substance that is hazardous to the health and safety of the employee, the air must be sampled by a qualified person and the concentration of the chemical agent, airborne asbestos fibres or hazardous substance must be determined by means of a test in accordance with
Coming into Force
3 These Regulations come into force on the day on which they are registered.
REGULATORY IMPACT ANALYSIS STATEMENT
(This statement is not part of the Regulations.)
Occupational health and safety (OHS) regulations made under Part II of the Canada Labour Code (the Code) prescribe the occupational exposure limits (OELs) for hazardous substances, including grain and flour dust. The Labour Program has identified a need to make amendments to the OELs for grain dust and flour dust in order to better protect the health and safety of employees and to ensure that levels are technically feasible and achievable.
With proper engineering controls, proper cleaning procedures and the use of appropriate respiratory protection equipment for certain tasks, the industry is currently able to comply with the proposed OELs for grain dust and flour dust; however, the presence of inappropriate standards in the regulations risks leaving federally regulated workers without adequate protection.
The current OEL of 10 mg/m3 for grain dust is too high and therefore puts the health and safety of federally regulated workers at risk. Scientific studies reveal that worker exposure to elevated concentrations of airborne grain dust may cause a range of health effects, most of which involve the pulmonary system, such as bronchitis, upper respiratory tract irritation, asthma, and decline in pulmonary function. It has been found that at dust concentrations below 5 mg/m3, the potential for eye, skin, and upper respiratory function would be minimized. Employer and employee representatives agree that the current OEL for grain dust is not appropriate.
The current standard of 0.5 mg/m3 for flour dust is impracticable, as it would require employees to wear respiratory protective equipment at all times during their entire work shifts. Wearing respiratory protection equipment may interfere with task performances, reduce work efficiency and can also result in physiological and psychological burdens for workers. footnote 3
The Labour Program of Employment and Social Development Canada (ESDC) administers the Code. Part II of the Code establishes the legislative framework for occupational health and safety in workplaces under federal jurisdiction. It provides that preventative measures must be undertaken to eliminate or control employees’ exposure to hazardous substances.
Employers, under federal jurisdiction, have a general obligation to ensure that the health and safety of every person that they employ is protected while they are working. This can be achieved by complying with Part II of the Code and the standards set out in the Canada Occupational Health and Safety Regulations (COHSR) and the Maritime Occupational Health and Safety Regulations (MOHSR).
Employers have specific duties in regard to each workplace they control and every work activity under their authority. In order to meet this goal, workplace parties (employees and employers) are encouraged to work together to develop practices and policies, to assess and address OHS issues effectively and in a timely manner. In addition, employers are required to provide employees with the information, education, training and supervision necessary to ensure their health and safety at work.
The Labour Program oversees implementation, in partnership with Transport Canada and the National Energy Board, of the requirements for federally regulated workplaces. Transport Canada is responsible for on-board workplaces in the aviation, marine and rail sectors under federal jurisdiction, the National Energy Board is responsible for workplaces in the oil and gas sector under federal jurisdiction and the Labour Program is responsible for all other federally regulated off-board industries, including banking; telecommunication; broadcasting; air, interprovincial rail, and road transportation; shipping and related services; grain elevators; feed and seed mills; uranium mining; Crown corporations; and the federal public administration.
Part X of the COHSR under Part II of the Code was identified as a priority for updating by stakeholders, including employer and employee representatives. In response, the Labour Program established the Part X Working Group to review and modernize the regulations in depth. Part X of the COHSR prescribes the workplace requirements and the exposure limits for hazardous substances, including grain and flour dust.
Occupational exposure limits (OEL)
An OEL is an upper limit on the acceptable concentration of a hazardous substance in workplace air for a particular material or class of materials over an eight-hour time weighted average limit.
The American Conference of Governmental Industrial Hygienists (ACGIH) is the pre-eminent international organization in the industrial hygiene and occupational health and safety field. The ACGIH provides critical information and recommends best practices to industrial hygienists worldwide. As part of its mandate, the ACGIH publishes science-based occupational exposure guidelines known as Threshold Limit Values (TLVs) and Biological Exposure Indices (BEIs), which are recognized internationally as establishing the scientific basis for the development of workplace standards. TLV and BEI are reserved terms of the ACGIH.
Currently, the federal OHS regulations prescribe that all occupational exposure limits of an airborne chemical agent must follow the TLVs established by the ACGIH, except for airborne grain dust and airborne asbestos fibres.
Grain dust, which is present in grain handling facilities such as grain elevators across Canada, is considered an airborne hazardous substance due to the adverse health effects associated with employee exposure via inhalation over time.
Currently, there are approximately 350 grain handling facilities that are federally regulated.
The physical and chemical composition of grain dust varies depending on the geographic site, the type of grain, the wetness of the season, the storage temperature, as well as many other factors. Grain dust consists of both organic and inorganic materials. The major components of grain dust include organic materials such as fractured grain kernels, fractured weed seeds, husks, storage mites, insects, bacteria, moulds, inorganic matter, and chemicals. footnote 4 The inorganic matter in grain dust includes soil, silicon dioxide, and a wide variety of other compounds containing many trace elements. The content of quartz and inorganic matter in grain dust appears to be related to the degree to which the grain has been cleaned. footnote 5 In other words, grain dust is generated by the abrasion of kernels when grain is being handled. Repeated handling produces greater amounts of dust. It has been estimated that when passing through a typical elevator, each ton of grain handled generates three to four pounds of dust. footnote 6
The scientific evidence is very clear that the current OEL for grain dust of 10 mg/m3 is harmful to workers’ health. footnote 7 According to the ACGIH, the most prominent health effect of grain dust is an acute irritation of the upper respiratory tract, the eyes, and, occasionally, the skin. Adverse health effects from exposure to grain dust were first reported by Ramazzini footnote 8 in 1713 who noted that workers in granaries and barns sifting and measuring grain almost all developed shortness of breath and rarely reached old age. footnote 9 An epidemiological study by the American College of Chest Physicians identified that the prevalence of most respiratory symptoms was higher among grain handlers than among control groups. In addition, it listed the prevalence of chronic bronchitis as 48% higher among grain handlers than city workers, for which the prevalence was documented at 18%. footnote 10
In 1985, the ACGIH adopted the OEL of 4 mg/m3 for grain dust. One of the main contributors to the ACGIH’s decision to set a grain dust OEL of 4 mg/m3 was the scientific work of Canadian researchers. According to the ACGIH, this value is to minimize acute irritation of the upper respiratory tract, eyes, and skin; bronchitis symptoms; and chronic decrements in pulmonary function. This recommendation was endorsed by the Canadian Thoracic Society and adopted by all Canadian provincial health and safety jurisdictions more than 20 years ago.
Across Canada, all provinces have adopted the OEL of 4 mg/m3. The territories have no limit specified since grain processing activities are extremely limited in the territories.
Internationally, the OEL for grain dust varies from one country to another. In the United States, the level for grain dust established by the Occupational Safety and Health Administration (OSHA) is 10 mg/m3. The OSHA acknowledges that many standards are outdated and recommends that employers follow more stringent exposure levels. Both the ACGIH and the National Institute for Occupational Health and Safety recommend an OEL of 4 mg/m3 for grain dust. Australia, England and Japan have an OEL of 4 mg/m3 for grain dust.
Based on the scientific evidence, the Labour Program intends to adopt a safe OEL for grain dust, which is also in line with the levels in force in all Canadian provincial health and safety jurisdictions.
Flour dust, which is present in wheat flour mills and bakeries across Canada, is considered an airborne hazardous substance due to the adverse health effects including respiratory sensitization associated with employee exposure via inhalation over time.
In Canada, there are approximately 50 wheat flour mills which are all federally regulated.
Exposure to flour can lead to irritation, resulting in inflammatory responses throughout the respiratory system, and sensitization resulting in asthma. In a study by Sudan, Awad el Karim et al., an analysis of respiratory symptoms showed that mill workers that were tested had a significantly increased prevalence of chronic cough, phlegm, chronic bronchitis, chest tightness, bronchial asthma, chronic rhinitis, urticaria, sinusitis and conjunctivitis when exposed to grain and flour dust. footnote 11 Many other studies were examined by the Labour Program in its Study on Exposure to Inhalable Flour Dust in Canadian Flour Mills. footnote 12
In federally regulated businesses, exposures to flour dust occur in flour milling operations, where grain is processed into flour. In provincially regulated businesses, flour dust exposure occurs in baking operations, where flour is used to produce a variety of food products.
The federal OHS regulations incorporate by reference the ACGIH standard, which currently prescribes an OEL of 0.5 mg/m3 for flour dust. Prior to the year 2000, the ACGIH standard was of 10 mg/m3 for particulate substances not otherwise classified, including flour dust.
In 1999, the ACGIH made known that it intended to include for the first time flour dust in the list of airborne hazardous substances maintained by this organization. The OEL proposed was 0.5 mg/m3 with respect to inhalable particulate matter. The ACGIH recommendation was based on scientific studies performed on workers in the flour mills and bakeries and was established solely on health factors. This recommendation did not consider the economic or technical feasibility of adopting an OEL of 0.5 mg/m3 for inhalable flour dust.
In 2000, following the ACGIH notice to establish the OEL for flour dust at 0.5 mg/m3, the Labour Program decided to conduct a study of the levels of employee exposure to flour dust in federally regulated flour mills. The study, published in 2001, revealed that the current OEL of 0.5 mg/m3 for airborne flour dust was impracticable as it would require employees to wear respiratory protective equipment at all times during their work shifts. The results also suggested that with some modifications made to the equipment, worker exposure to flour dust in Canadian flour mills could be reduced to 3 mg/m3.
Across Canada, provincial and territorial jurisdictions set levels of worker exposure to flour dust in bakeries between 0.5 mg/m3 and 10 mg/m3. The provinces of British Columbia, Manitoba, Nova Scotia, Newfoundland and Labrador as well as Prince Edward Island have adopted the level of 0.5 mg/m3. The provinces and territories of Alberta, Northwest Territories, Ontario and Saskatchewan have adopted the limit of 3 mg/m3. The province of Quebec prescribes a level of 10 mg/m3. For New Brunswick and Yukon there is no limit specified.
In provincially regulated bakeries, flour dust exposure levels are less constant than in wheat flour mills. footnote 13 The OEL of 0.5 mg/m3 is therefore achievable in bakeries since it is much easier to apply engineering control measures at the source. In cases where engineering control measures are not effective in achieving levels at or lower than 0.5 mg/m3, the use of respiratory protection equipment would only be required for short duration, since studies show significant employee exposure to flour dust in bakeries tends to be isolated to certain operations, for example during mixing flour. footnote 14 In wheat flour mills, exposure to concentrations above 0.5 mg/m3 is constant, so despite the use of modern equipment, scientific evidence show that the level of 0.5 mg/m3 is impracticable without workers using respiratory protective equipment at all times. footnote 15
Internationally, the OELs for flour dust vary from 0.5 mg/m3 to 10 mg/m3. The United States, whom is a direct competitor to the Canadian flour milling industry, does not have a specific OEL for flour dust. However, OSHA acknowledges that many standards are outdated and recommends employers to follow more stringent exposure levels. OSHA publishes exposure limits and health effects for particulates not already regulated. In England the OEL in force is 10 mg/m3. In Australia, Greece, Finland, Iceland and Norway, the OEL for flour dust is set 5 mg/m3. The Czech Republic, Germany and Spain have adopted an OEL of 4 mg/m3 for flour dust. Finally, Sweden and Denmark have set their OEL at 3 mg/m3. It must be noted, however, that the OELs vary because they depend on what has been used as the health end point; for example, in the jurisdictions where the OEL is 3 mg/m3 and above, the health end point was asthma, and in the jurisdictions with the established OEL of 1 mg/m3 or below, the health end point was the respiratory sensitization.
The main objective of the proposed amendments to the OHS regulations is to protect the health of employees in the federal jurisdiction by setting an appropriate OEL for two known health hazards: grain dust and flour dust. Doing so would
- mitigate the risk of occupational illness by adopting an OEL for grain dust that would ensure that the health and safety of employees under federal jurisdiction is protected;
- ensure consistency of the OEL for grain dust with the standard in force in most Canadian provincial health and safety jurisdictions; and
- provide flour mill workers with adequate protection that is technically feasible.
The proposed amendments to the COHSR and MOHSR would
- reduce the current OEL of 10 mg/m3 for grain dust to 4 mg/m3 ; and
- increase the current OEL for flour dust from 0.5 mg/m3 to 3 mg/m3.
The proposed amendments do not introduce any new stakeholders to the regulatory regime or make changes to existing administrative requirements. As a result, the proposed amendments do not place an administrative burden on industry, and, therefore, the “One-for-One” Rule does not apply.
Small business lens
The small business lens would not apply to this proposal, as there are no expected impacts for small businesses operating in the grain and flour mill sectors.
There are approximately 65 small businesses operating in the federal grain sector. The changes related to grain dust exposure levels would not have an impact on small businesses since the industry is already limiting workers exposure to 4 mg/m3. For certain tasks which exposure levels may exceed 4 mg/m3, the industry is already complying by providing respiratory protection equipment to employees.
There are approximately 30 small businesses in the flour milling industry. The changes related to flour dust exposure levels would also not have an impact on small businesses because the proposed OEL is less onerous to achieve than the one required since 2000. For specific tasks that may result in exposure levels exceeding 3 mg/m3, respiratory protection is provided.
In 2009, a working group composed of employer, employee and Labour Program representatives, was created with the intent to review in depth Part X – Hazardous Substances of the COHSR. Stakeholders met 18 times from 2009 until consultations were completed in spring 2014.
The Part X Working Group focused on establishing a new OEL for grain dust in order to protect employees and mitigate any negative economic repercussions for businesses. The exposure level for grain was reviewed because: (a) new epidemiological studies conducted since it was last reviewed suggest a lower exposure limit is more appropriate; and (b) all provincial jurisdictions currently use 4 mg/m3 as their standard. Employee stakeholders agreed with the proposed OEL of 4 mg/m3 whereas employers conceded that the current level of 10 mg/m3 is not appropriate, but submitted that there was insufficient evidence to support adopting an alternative level.
Employer representatives have requested a new epidemiological study to determine the appropriate OEL for grain dust. An epidemiological study would require an analysis of the grain dust exposure and the occurrence of adverse health effects in exposed workers over the extensive period of time. This study would be very complex and may take several years to complete. It should also be noted that it would take a minimum of 10 years to be able to observe health effects associated with different exposure levels. A university medical research group would have to conduct the study and it is very likely that a new study would not contain any new conclusions beyond what is already well-established in the scientific literature since sampling techniques and tests have not changed over years.
In addition, a guideline with the industry input on the requirements and best recommended practice for minimizing employee exposure to flour dust and grain dust in flour mills in Canada has been developed and is expected to be published in June 2018.
Considering the scientific evidence available, the fact that employee representatives are fully supportive of the proposed OEL of 4 mg/m3 and the most recent data collected by the Labour Program indicating that over the last several years, worker exposure to grain dust does not exceed 4 mg/m3 even though the current prescribed OEL is of 10 mg/m3, the Labour Program recommends moving forward with the static OEL of 4 mg/m3.
While employers are required to ensure that workplaces are safe, the absence of an appropriate OEL in the regulations leaves the grain industry without an adequate regulatory standard.
In 2001, following concerns expressed by the flour milling industry through representations made to the Labour Program, it was decided to create a trilateral study group, composed of Labour Program, employee and employer representatives, to assess the feasibility of achieving regulatory compliance to the ACGIH standard of 0.5 mg/m3 for flour dust.
From 2001 to 2003, the Flour Dust Study Group held a total of three meetings and two teleconferences to review the results of study conducted by the Labour Program in 2000 and to set a proper OEL for federally regulated employees.
From 2009 to 2014, through the Part X Working Group, composed of union, employee, employer and Labour Program representatives, extensive consultations have taken place on an exposure limit that would protect employees, while allowing for compliance based mainly on engineering controls and proper cleaning procedures rather than requiring that workers wear personal protective equipment at all times. Based on its 2001 study and the scientific evidence available, the Labour Program recommended adopting the OEL of 3 mg/m3 for flour dust. Both employer and employee representatives recognize that the ACGIH standard of 0.5 mg/m3 is impracticable.
While employee representatives are in full support of the proposed OEL of 3 mg/m3, employer representatives’ claim that even with engineering controls, the level of 3 mg/m3 would not be possible and would result in employees wearing personal protective equipment for some activities. The Labour Program study of 2001 clearly concluded that the OEL of 3 mg/m3 would be achievable with the use of proper equipment and best working practices. Personal Protective Equipment would be required in about 15% of the time for particular tasks where the risk of exposure is highest. Furthermore, a number of samples taken by the Labour Program in the Quebec Region from 2008 to 2015 indicate that federally regulated flour mills are currently able to comply with the OEL of 3 mg/m3 without workers using respiratory protection at all times.
Employer representatives also argue that there is no sampling technology available to measure grain and flour dust when the two substances are commingled in a single workplace. In response, the Labour Program has reiterated on several occasions that grain dust and flour dust particles have different sizes and can be measured separately. In addition, general guidance documents on grain and flour dust were posted on the Labour Program website on September 16, 2016. They address how and where sampling should be done.
A technically feasible level is therefore being proposed to bring the issue to a close.
Study group on grain and flour dust
In July 2016, a working group composed of Labour Program and industry representatives, namely the Western Grain Elevators’ Association (WGEA) and the Canadian National Millers’ Association (CNMA), was created to produce an updated joint literature review on existing grain and flour dust studies. The mandate of the working group was to collect and synthesize Canadian data concerning occupational exposure to grain and flour dust, including health effect, OELs, sampling methodologies, the nature and extent of exposures, and control measures. Considering there was no new scientific evidence on health effects published in the last five years, the primary purpose of the working group changed to consolidating the existing information, including each party’s position, in a report that would be used to assist the Labour Program in creating additional guidance materials for Labour Program Officials delegated by the Minister of Labour (ODMs) and affected federal employers.
It must be noted that ultimately, the CNMA agreed with the OEL of 3 mg/m3, provided that the Labour Program would create a new guidance document entitled Occupational Exposure Limit (OEL) for Flour Dust: Requirements and Recommended Best Practices for Minimizing Employee Exposure to Flour Dust and Grain Dust in Flour Mills in Canada, which is in the process of being finalized, for use by Labour Program ODMs and employers in the federal jurisdiction to support their efforts to ensure compliance.
The WGEA maintained their position as they believed further studies are required to determine the proper OEL for grain dust. Both the WGEA and the CNMA indicated that they were willing to work closely with the Labour Program in creating clear guidance documents to assist employers in complying with the proposed amendments.
In the report, the Labour Program has concluded that the OEL of 4 mg/m3 for grain dust and the OEL of 3 mg/m3 for flour dust are the appropriate levels to ensure the health and safety in the federal jurisdiction.
Comments received following prepublication of the proposed Regulations in the Canada Gazette, Part I, on June 10, 2017
The proposed Regulations were prepublished in the Canada Gazette, Part I, on June 10, 2017, and were followed by a 30-day public comment period that ended on July 10, 2017. During that period, a number of questions and comments were received from stakeholders.
Comments received following prepublication of the proposed Regulations were supportive of the proposed OEL for flour dust. The proposed OEL for grain dust was met with mixed reactions from stakeholders. In total, the Labour Program received comments from seven stakeholders. Comments were mainly related to the following themes: the reduction of the OEL for grain dust to 4 mg/m3, the link to the ACGIH standard for grain dust, the feasibility and costs of the amendments, and accuracy of data.
Comments were reviewed and addressed, bearing in mind the objectives of protecting the health of employees in the federal jurisdiction, providing regulatory certainty by setting appropriate OEL for grain and flour dust and ensuring consistency with most provincial and territorial regulatory regimes.
OEL for grain dust — Incorporating a reference to the ACGIH standard and reducing the OEL to 4 mg/m3
Stakeholders were concerned with the adoption of the ACGIH standard and proposed excluding the OEL for airborne grain dust from adhering to the value set by the ACGIH standard. They expressed concerns with incorporating by reference to a non-governmental U.S.-based standard, and that the ACGIH does not consider operating environments, economic practices and economic feasibility in their standards and recommendations.
Stakeholders proposed increasing the OEL for grain dust from 4 mg/m3 to 5 mg/m3 but stated that if the OEL remained at 4 mg/m3, the Government should establish a firm OEL that would not be linked to the ACGIH. The stakeholders mentioned that the adoption of the ACGIH standard could expose Canadian businesses to further OEL changes in the future with limited ability to influence or collaborate on the decision.
The Labour Program’s objective is to reduce the risk of occupational illness caused by grain dust, and scientific studies have found that concentration of 4 mg/m3 minimize health impacts to employees. This goal can be achieved without a link to the ACGIH standard. The Labour Program has accepted the suggestion from stakeholders to de-link the OEL and has amended the regulations to establish an OEL of 4 mg/m3 for grain dust that is not incorporated by reference to the ACGIH. There are no immediate risks with removing the reference to the ACGIH standard. However, should new scientific evidence become available, or changes be required to the OEL in the future, then the Labour Program would need to re-examine the standard and evaluate if amendments are necessary.
Technical feasibility, costs and competitive disadvantage
Stakeholders were concerned that the new amendments would result in important costs and operational impacts in terms of feasibility. In addition, one of the stakeholders expressed concerns related to the potential competitive disadvantage with the United States.
With regard to the technical feasibility of the proposed OEL, the current ACGIH–TLV was adopted in 1988–1989, during the time when the ACGIH included economic variables in the development of its TLVs. Recent data from the Labour Program also demonstrates the feasibility of implementing the proposed OEL. As mentioned previously, numerous industrial hygiene surveys conducted by the Labour Program indicate that federal grain-handling employers are in compliance with the level of 4 mg/m3 a majority of the time. From a total of 725 samples of grain dust from terminal grain elevators across the country, 77% (556) of the samples were within the concentration range from 0 mg/m3 to less than 4 mg/m3. Furthermore, a majority of the provincial Canadian health and safety jurisdictions specifically reference the ACGIH standard in regard to their OELs, within their regulations.
The proposed OEL will not create a competitive disadvantage. All the Canadian provincial health and safety jurisdictions have adopted an OEL of 4 mg/m3 for grain dust. In addition, Australia and Japan have adopted the proposed OEL.
Furthermore, as indicated in the Regulatory Impact Assessment Statement (RIAS), the scientific evidence is very clear that the current OEL of 10 mg/m3 for grain dust is harmful to workers’ health. While the Labour Program supports the Canadian grain industry in competing at the international level, it is the priority of the Labour Program to do so while ensuring the health and safety of workers under its jurisdiction.
Inadequacy of existing data
Stakeholders expressed their concerns regarding the accuracy of the data published in the Canada Gazette, Part I, as well as with the limited number of sampling.
Though the scientific articles referenced in the RIAS date back to the mid-1990s, the data provided on this subject is still considered valid. Sampling techniques and tests to examine the relationship between the amount of grain dust entering the body and the occurrence of an adverse health effect in an exposed worker, otherwise known as the dose-health effect relationship, have not changed over the years. Thus, it is very likely that any new study that the Labour Program undertakes will simply replicate the results of previous studies. In addition, there is already sufficient current data regarding the existing levels of exposure to grain dust in Canadian grain elevators. From 1988 to 2010, the Labour Program conducted numerous industrial hygiene surveys in terminal grain elevators across the country. The results indicated that federally regulated employers were already in compliance with the proposed OEL of 4 mg/m3 the majority of the time, despite the current federal OEL of 10 mg/m3.
Furthermore, the most relevant scientific studies of the dose-health effect relationship for grain dust exposure, conducted between 1976 and 2000, were published using sampling data from Canadian workplaces. In fact, the decision by the ACGIH to set the OEL for grain dust at 4 mg/m3 was due, largely, to the work done by Canadian researchers on the sampling of grain dust in Canadian grain elevators.
As agreed to at various stages of the consultations, stakeholders provided input for the development of a guidance document to support employers’ compliance.
The guidance document, entitled Occupational Exposure Limit (OEL) for Flour Dust: Requirements and Recommended Best Practices for Minimizing Employee Exposure to Flour Dust and Grain Dust in Flour Mills in Canada, is currently being developed by the Labour Program with the industry input. The Labour Program remains committed to working with and supporting the members of the CNMA to ensure compliance.
The proposed OELs would better protect employees’ health and safety in the workplace and ensure that levels are technically feasible and achievable.
The proposed OEL of 4 mg/m3 takes into consideration the scientific evidence regarding health effects available, the economic and technical feasibility and the level in force in all Canadian provincial jurisdictions. footnote 16
The amendments proposed to the federal OHS regulations would better protect the health and safety of workers in reducing the risks from grain dust exposure that cause a range of health effects, most of which involve the pulmonary system by lowering the OEL to the level of 4 mg/m3.
The proposed OEL of 4 mg/m3 for grain dust will bring federal OHS regulations in line with Canadian provincial jurisdictions.
On the basis of several sampling studies cited below, the Labour Program has concluded the proposed change would have no cost to employers, as they are already in compliance to the proposed OEL of 4 mg/m3.
Data compiled by the Labour Program between 1988 and 2010 indicates the industry is already limiting exposure to 4 mg/m3. During this period, the Labour Program took 725 samples of grain dust in terminal grain elevators across the country. Airborne concentrations in 556 samples out of 725 (77%) were in the range of 0 mg/m3 to less than 4 mg/m3, and in 124 samples (17%), between 4 mg/m3 and less than 10 mg/m3. In 45 samples (6%), levels from 10 mg/m3 to less than 20 mg/m3 were observed. Results show federally regulated employers were already limiting airborne concentrations to under 4 mg/m3 three quarters of the time. When levels exceeded 4 mg/m3, it was observed employers were providing employees with respiratory protection equipment, thus limiting employee exposure to under 4 mg/m3.
Follow-up data obtained from 12 samples taken in 2016 indicated grain dust levels ranging from 0.26 mg/m3 to 29.2 mg/m3. Eight samples showed levels from 0.26 mg/m3 to 3.84 mg/m3 and four samples were between 7.94 mg/m3 to 29.2 mg/m3. Exposure levels higher than 4 mg/m3 were strictly associated again with sweeping and cleaning procedures, with employees wearing respiratory protection. These observations were consistent with the earlier sampling studies done between 1998 and 2010.
As the sampling studies indicate, the industry is already in compliance with the proposed OEL; therefore, no additional benefits are expected from the proposed amendments. Notwithstanding, codification of the OEL in the regulations would ensure that these benefits continue to accrue in the future. The amendments would facilitate implementation and provide certainty.
The proposed OEL of 3 mg/m3 takes into consideration the scientific evidence available regarding health effects, the economic and technical feasibility, and the levels in force at the international level.
The scientific evidence is clear that occupational exposure to flour dust can induce asthma, various chronic airway dysfunctions, including rhinitis and bronchitis, skin and eye symptoms, and respiratory sensitization. While exposure-response relationships as well as personal exposure to flour dust have been analyzed by several authors, it appears that neither a reliable relationship between exposure levels and effects on the respiratory passages could be established nor a threshold level for no effect on the respiratory tract has been determined. footnote 17
The level of 0.5 mg/m3 represents the lowest health risk of inducing asthma and rhinitis, and protects from respiratory sensitization. Studies have shown that the level of 3 mg/m3 protects against asthma and reduces the risk of respiratory sensitization. footnote 18 Consequently, the proposed OEL of 3 mg/m3 is considered to be a compromise as it would be technically feasible and would protect workers from asthma.
The results of a study published by the Labour Program in 2001 suggest that with the most up-to-date technology and proper cleaning procedures in place, the flour milling industry may not be able to reduce worker exposure to flour dust to the levels below 0.5 mg/m3 without the use of respiratory protection at all times. footnote 19 As a result, any increased health and safety protection offered by the current standard is diminished because the continuous wearing of respiratory protective equipment imposes a whole host of other health risks to employees that impact their ability to perform their work, including those related to heat exhaustion and breathing difficulties. footnote 20 The study also suggested that with some modifications made to the dust collection system and possibly better designed packing machines, worker exposure to flour dust in Canadian flour mills could be reduced to 3 mg/m3.
From 2008 to 2015, the Labour Program took samples of flour dust in federally regulated wheat flour mills in the Quebec Region. The results indicated that despite modern equipment, best practices, and appropriate engineering controls in place, federally regulated flour mills are unable to reduce flour dust exposure levels below 0.5 mg/m3. An analysis of these samples revealed that 45% were at 3 mg/m3 or below. The remaining 55% of the samples, where flour dust concentrations were higher than 3 mg/m3, were a direct result of the use of compressed air for cleaning purposes, which is prohibited by the regulations. In these instances, employers are providing respiratory protection equipment to employees.
The Labour Program’s internal technical advisors confirm that Quebec’s flour-milling industry is representative of the national industry, i.e. the technology and control measures used for cleaning and filtration is similar across the country; therefore, the flour milling industry under federal jurisdiction would be able to meet the proposed OEL of 3 mg/m3.
The proposed OEL of 3 mg/m3 for flour dust is not expected to create compliance costs for the flour milling industry under federal jurisdiction as the proposed OEL is achievable and less onerous than the enforceable level of 0.5 mg/m3 has been in force since 2000.
Based on the results of the study conducted by the Labour Program in 2001, samples collected by the Labour Program from 2008 to 2015 in federally regulated flour mills, extensive stakeholders’ consultations, the support of employee stakeholders and the recent literature review prepared in consultations with flour milling industry stakeholders, the Labour Program recommends increasing the current OEL for flour dust from 0.5 mg/m3 to 3 mg/m3.
Implementation, enforcement and service standards
The employers under federal jurisdiction will have to comply with the new requirements regarding the OELs as of the day of the coming into force of the amendments to the regulations. These changes will be communicated to stakeholders to ensure compliance.
Overall, the Labour Program’s compliance policy outlines the proactive and reactive activities used by delegated officials to ensure compliance. While OHS policy committees and workplace committees are the primary mechanisms through which employers and employees work together to solve job-related health and safety problems, the employer remains ultimately responsible for workplace health and safety. Delegated officials assist the industry in establishing and implementing policy committees and workplace committees, and related programs.
Statutory powers allow delegated officials to enter work sites and perform various activities to enforce compliance with the Code and the OHS regulations. For example, delegated officials may conduct safety audits and inspections. They may also investigate the circumstances surrounding the report of a contravention, work accident, refusal to work, or hazardous occurrence.
If violations of the regulations are observed and are not resolved via policy and workplace committees, enforcement actions towards the employer for non-compliance would be used by a delegated official. Enforcement actions may range from the issuance of a written notice to further steps such as the initiation of prosecution. Initially, an attempt to correct non-compliance with the regulations, when non-compliance does not represent a dangerous condition, is made through the issuance of an Assurance of Voluntary Compliance (AVC). An AVC is a written commitment that a contravention will be corrected within a specified time. Failure to complete the corrective actions specified in the AVC may lead the delegated official to issue a direction. A direction is issued whenever a serious contravention or dangerous condition exists and when an AVC is not obtainable or has not been fulfilled. Failure to comply with a direction is a violation of the Code and as such is enforceable by prosecution. Offences can lead to imprisonment. The maximum penalty for offences is, on summary conviction, a fine of $1M, or on conviction on indictment, imprisonment for up to two years and/or a fine of $1M. Prosecutions are typically reserved for the most serious offences, given the resources required for them.
Occupational Health and Safety Policy Unit
Employment and Social Development Canada
165 De l’Hôtel-de-Ville Street
Place du Portage, Phase II, 10th Floor