Jess McCluer National Grain and Feed Association July 12, 2012 Top Regulatory Issues Facing the Grain Handling Industry in 2012
Jess McCluerNational Grain and Feed Association
July 12, 2012
Top Regulatory Issues Facing the Grain Handling Industry in 2012
NGFA Fast Facts
NGFA represents more than 1,000 member companies, including: Grain elevators Feed manufacturers Oilseed processors Flour mills Biofuels producers Many other related agri‐businesses
NGFA’s mission and purpose for the last 115 years Secure an abundant and safe food supply Promote free markets
Top OSHA Issues for 2012
• Continued Increased Enforcement Upon Grain Handling Industry
• Sweep Auger Letter of Interpretation
• Combustible Dust Rulemaking
• Rolling Stock Fall Protection
Recent OSHA Trends
Current administration has been very active in changing how regulations are interpreted and applied to grain handling industry:
OSHA says you always have to take atmospheric measurements to prove what the atmosphere is before entry
Is implying that a standard boot pit is now a permit‐required confined space
Can not enter a bin with any augers operating although the original rule allowed it under proper procedures
Redefining where and how fall protection is needed when on top of railcars and discarded previous guidelines
Why Grain Handlers Must Prepare for OSHA
Significant increase in OSHA enforcement
OSHA’s extreme scrutiny of grain handling
Other costs of OSHA inspections/enforcement
Casts workplace in best possible light
Better control over the flow of information
Improves safety
Minimizes exposure to willful violations
Too late to prepare once OSHA arrives
August 4th 2010 and February 1st 2011 Letters
OSHA has investigated several cases involving worker entry into grain storage bins where we have found that the employer was aware of the hazards and of OSHA’s standards, but failed to train or protect the workersentering the bin,” wrote OSHA Administrator David Michaels.
Enforcement-Heavy Philosophy
Field Operations Manual amended to force up penalties:• Doubled minimum penalties
• Halved allowable penalty reductions
for size
• Time for “Repeat” increased
from 3 to 5 years
• Time for clean history reduction
expanded from 3 to 5 years
• Maximum 30% penalty reduction
at informal conference
Enforcement-Heavy Philosophy
• 100+ new CSHOs• More inspections• Increased penalties• More criminal cases• Tripled significant cases • New enforcement initiatives• Added special emphasis programs• Amended FOM to increase final penalties• Expanded scope beyond single workplace
Proactive Targeting Philosophy
Shift from reactive to proactive targeting
Increased use of National Emphasis Programs (“NEP”) and Local Emphasis Programs (“LEP”)
LEPs for Grain Handling Facilities
Falls In General Industry LEP
Combustible Dust NEP
Injury & Illness Recordkeeping
NEP
Regional and Local Emphasis Programs
Region V – grain handlingo Illinois, Indiana, Michigan, Minnesota, Ohio, and Wisconsin
Region VI – grain handlingo Arkansas, Texas, Oklahoma, and New Mexico
Region VII – grain handlingo Missouri, Iowa, Nebraska, and Kansas
Region VIII – grain handlingo Colorado, Wyoming, Montana, Utah, North Dakota, and South Dakota
State Emphasis Programso Iowa and Indiana
Proactive Targeting PhilosophyOSHA
Inspection Statistics (Federal
and State)
FY09 FY10 FY11FY12 (Oct-
Dec)
Total Inspection
238 296 380 91
PercentProgrammedInspections
42% 49% 55% 68%
Total Violations
Issued 858 1,289 1,552 329
Most Frequently Cited OSHA Standards in Grain Handling Industry
1910.272 – Grain Handling Standard 1910.219 – Mechanical power‐transmission apparatus 1910.23 – Guarding floor and wall openings and holes 1910.146 – Permit required confined space 1910.305 – Wiring methods, components and equipment for use
Most frequently cited standards in 1910.272 include: 1910.272 (j)(1) – failure to implement a written housekeeping program 1910.272(g) (1)(i) – failure to issue a permit prior to entering a bin 1910.272(g)(1)(ii) – failure to deenergize and disconnect all equipment in a
grain storage structure before employees enter. 1910.272 (j)(2)(ii) – failure to immediately remove fugitive dust accumulations,
or provide equivalent protection 1910.272(m)(3) – failure to maintain a certification record of performed
preventative maintenance inspections
Follow-up Inspections/Repeat Violations
OSHA historically: • Treated workplaces as individual, independent establishments
• Limited its review of employers’ OSHA records to 3 years
• Reactive Philosophy (less likely to revisit workplaces within a few years)
OSHA now:• Treats workplaces within a corporate family as 1 workplace
• Looks back 5 years at employers’ OSHA enforcement records
• Proactive Philosophy (hand selects past violators as targets for inspection))
Follow-up Inspections/Repeat Violations
OSHA systematically laying groundwork for futureRepeat violations by:
1. Issuing citations with numerous cited standards (often with low‐dollar penalties)
2. OSHA settles these citations by reducing the penalty and/or re‐classifying citations to “Other Than Serious”
3. OSHA conducts “follow‐up” inspections at the same or a related facility
Increased Follow-up Inspections =Increased Repeat Violations =
Much Higher Penalties
Increase in Repeat Violations from 2006 to 2010
Classification of Violations
Percent Change
Serious 22.1%
Repeat & Willful 225.2%
Other-than-Serious - 10.4%
Total 15.5%
Increase in Penalties from 2006 ‐ 2011
0
2
4
6
8
10
12
14
16
18
20
2006 2008 2010 2011
$1,000,000 + Cases
Severe Violator Enforcement Program
Severe Violators = Employers who “demonstrate indifference to their OSH Act obligations” by:
Any egregious enforcement action
2+Willful, Repeat or FTA citations related to High-Emphasis Hazards
3+ willful, repeat, or FTA citation related to potential release of a HHC
1+ Willful, Repeat, or FTA citations related to a fatality or catastrophe
OSHA Sweep AugerLetter of Interpretation
On 12/24/09 OSHA issued a letter pertaining to sweep auger operations within grain bins: www.osha.gov (Interpretations)
Prohibits an employee from working inside a bin while an unguarded sweep auger is in operation
OSHA offered no acceptable procedures that would allow a person to work inside a bin when an unguarded auger is in operation
Recent Legal and Political Developments
Administrative Law Judge Decisions on the State and Federal Level
Senator Grassley (R-IA) received a response from OSHA after forwarding constituent letter asking for clarification
Congresswoman Noem (R-SD) recently sent letter to OSHA encouraging agency to work with stakeholders to find practical solution
Legislative language has been introduced that would prevent interpretation of standard which would not allow anyone from working in bin.
Combustible Dust Regulations and Compliance
Advance Notice of Proposed Rulemaking (ANPRM) issued on Oct. 21, 2009 outlined agency’s intent to develop a comprehensive combustible dust standard that would apply across different industry sectors: ANPRM posed various 69 questions on which OSHA is soliciting public comment.
NGFA, AFIA and PFI submitted Joint Comments on Jan. 19, 2010. Stakeholder meeting conducted on Dec. 14, Feb. 17 and April 21; NGFA testified at each one.
NGFA participated in June 28 Web‐based forum. OSHA originally had the CD standard on a fast track to be done in 2 to 3 years (from 2009) but now state a CD standard is indefinite.
Combustible Dust Regulations and Compliance
OSHA is looking at other ways to address combustible dust hazards, such as, using other standards to cover the hazard. Housekeeping Section of Proposed Walking and Working Surface proposed rule
“Chemical Hazard” Category in Proposed Amendment to Globally Harmonized Communication standard
Injury and Illness Prevention Program NFPA’s New Standard Covering the Fundamentals of Combustible Dust
Combustible Dust Regulations and Compliance
GHS Amendment to OSHA Hazard Communication Standard Final Rule: 3/26/2012 Effective Date – 5/25/2012 – 60 Days after publication Combustible Dust is classified as “chemical hazard” and is undefined Shipments of products that could produce combustible dusts e.g. whole grain when used in processing or where dust is produced is subject to new rule
New requirements mean new MSDS’ and labels for manufacturers, distributors and importers. The key question is who is the manufacturer, distributor and importer.
Training is effective 12/2013 and new requirements go into effect in 6/2015
NGFA along with several other agribusiness organizations has filed a legal petition to review in order to challenge combustible dust requirements
Combustible Dust Regulations and Compliance
OSHA recently issued a “serious” citation to a designated FGIS official agency for not, “…developing a written Hazard Communication program for using and exposed to chemicals while working in the in‐house laboratory and at on‐site laboratories at the elevator and mill customer locations.”
“Employees were exposed to injury and illness form exposure to chemicals but not limited to…grain dust.”
Rolling Stock Fall Protection
FGIS cited by OSHA in July 2011 for not using fall protection on top of rail car; being appealed at national levelo Could have significant impact on daily operationso Further example of “broad” interpretation of letter of
interpretationo OSHA recently cited an FGIS designated official agency
Since 2010 several grain‐handling facilities have been issued individual “willful” citations with fines between $60‐70,000
NGFA has reached out to AAIGWA to work together on important issue
Rolling Stock Fall Protection (cont.)
On March 2, the Occupational Safety and Health Review Commission issued a decision that reaffirmed the “Miles Memo,” particularly its determination of where fall protection in feasible (inside or contiguous to a building) and where it is not (away from such areas). Also reaffirmed administrative controls can be used to protect employees.
Notice of Proposed Rulemaking (NPRM) issued on May 24, 2010 outlined agency’s intent to significantly revise current fall protection standard.
Specific issues related to grain and feed industry : Seeks comments on whether specific regulations are needed to address rolling stock and commercial motor vehicles
Seeks comments on whether to include specific references to combustible dust in the housekeeping section of the standard
2012 NGFA Safety Projects
• Grain Handling Safety Best Practices Seminar/Webinar o Focus on complying with OSHA Grain Handling
Standardo 4 Regional Sessions
• Kansas State Annual Dust Explosion Studyo Potentially renew the annual dust explosion study through
funding from the National Grain and Feed Foundation
• Cost-benefit Analysis of Applying NFPA Venting Standards to Grain Bins o Can standards be applied at a reasonable cost
Education and Training Education
“Grain Bin Safety: Protection You and Your Family” NGFA and NCGA safety training DVD
“Your Safety Matters” NGFA and GEAPS safety training DVD
“Don’t Go With the Flow NGFA and Purdue University entrapment rescue training video
Training Safety, Health and Environmental and Grain Quality Conference, August 1‐2, 2012
Thank you!
National Grain and Feed Association1250 I Street, N.W.
Suite 1003Washington, DC 20005
Jess McCluer202‐289‐0873 | [email protected]