Oklahoma Ag EXPO

Top OSHA Issues for 2012

November 3, 2011Oklahoma City, OK

Jess McCluerNational Grain and Feed Association

About NGFA

More than 1,000 member companies representing:• Grain elevators,• Feed manufacturers,• Oilseed processors,• Flour mills,• Biofuels producers,

and• Many other related

businesses

Benefits of membership:• Contract arbitration and

access to NGFA Trade Rules

• Information services (bi-weekly Newsletter and E-Alert service)

• Professional development and training

• Representation in Washington, DC

National Grain and Feed Association

NGFA has been serving the industry for 115 years with the mission and purpose of:• Securing an abundant

and safe food supply• Promoting free

markets

Safety and Health

Occupational Safety and Health Administration

• Sweep augers• Combustible dust• Fall protection• Increased inspections• Severe Violator

Enforcement Program

OSHA Sweep Auger Letter of Interpretation

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

What Does the Letter Mean?

Until / unless modified, prevailing opinion and supersedes previous documents.

Each Region, Area Office and State Plan State can and has been interpreting the letter differently.• OSHA has used this letter to issue citations in 2010.

NGFA has met with OSHA in October and continues to work with OSHA to review the December 24th letter and it’s impact on grain handling and processing.• Anticipate written communication from OSHA

regarding this situation early in 2012.

Sweep Auger Issue Can OSHA do this?

• Inconsistent with the language in the standard and in the rulemaking record

• “Backdoor” rulemaking

No consideration for the practical implications• View of experts: “You are going to need a

lot of shovels and workers with strong backs”

• Economic impact could be substantial

Sweep Auger Issue (cont.)

NGFA and Senator Grassley (R-IA) also sent letters asking for clarification

Congresswoman Noem (R-SD) recently sent letter to OSHA encouraging agency to work with stakeholders to find practical solution

There is a case currently pending before federal OSHA challenging this policy

Sweep Auger Issue ( cont.) A recent state plan decision addressed

the issue of unguarded sweep augers The Judge held that the Company

“established that it is not possible to affix guards to the sweep auger’s point of operation without rendering the sweep auger ineffective” and also “established that its location guarding made it highly unlikely that an employee would touch the sweep auger’s point of operation”

Sweep Auger Issue (cont.) Having employees in the bin during

sweep auger violations does not violate the Grain Handling standard

• With a “ground level opening” (standard two-ring door), employees are permitted to be inside the bin while sweep auger is running as long as there is no engulfment hazard

Because this is a state plan decision it has no impact on federal OSHA or in other state-plan states

What Can I Do?

Have effective safety and health program and procedures.

Review and analyze December 24th letter of interpretation and make changes to sweep auger operation process as you interpret.

Be prepared to explain to OSHA why you have or have not made changes to current policy.

Look for alternatives• “No entry” sweeps• Effective Lockout Tagout system• Cyclone vacuum systems• Air augers

OSHA’s Initiative on Combustible Dust

The 2008 sugar plant explosion in Georgia started this regulation.

OSHA began an “advanced notice of proposed rulemaking” process.

Risks to our industry of this rulemaking:• 1/8 inch standard could go lower (1/16 inch; 1/80 inch).• Other sectors besides elevators could have similar

housekeeping standards.• Too much emphasis on dust may lead to too little attention on

other risks e.g. ignition sources• How safe are we today? In 30 years: 2/3 reduction in

explosions and 90% reduction in fatalities.

OSHA Combustible Dust Rulemaking

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.• NGFA is working with other organizations that also are

affected: AFIA, NOPA, CRA, RFA, NAMA, others; goal is to convey a consistent message

OSHA Combustible Dust Rulemaking

Rulemaking issues specific to grain and feed industry:• Are revisions needed to the industry’s current

grain handling standard?• Should current grain handling standard be

“harmonized” with the potential approach created for other combustible dusts

• Should grain and feed facilities be incorporated into a “new” standard, if developed

OSHA Combustible Dust Rulemaking

Housekeeping action level is a major consideration• OSHA is considering whether to incorporate

National Fire Protection Association (NFPA) standards into combustible dust rule

NFPA standards refer to 1/64th inch of dust covering five percent of the total floor area of a building as a combustion hazard

NFPA formally proposed to combine into a single standard its current five separate combustible dust standards – NFPA 61, 484, 654, 655 and 664

NFPA is creating Combustible Dust Technical Committee

What’s Next?

OSHA recently convened Combustible Dust “Expert” Panel to Discuss Cost Impact

Small Business Advocacy Review panel to review the draft proposed rule and related analyses prepared by OSHA.

The panel will have 120 days to consider the proposal and provide recommendations.

OSHA Walking-Working Surfaces and PPE Standard

Notice of Proposed Rulemaking (NPRM) issued on May 24 outlined agency’s intent to significantly revise current fall protection standard. Comments were due on August 23.

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

OSHA Walking-Working Surfaces and PPE Standard

Other issues in far reaching proposal include:• New requirements for guardrail, safety net

and personal fall protection;• New requirements for portable and fixed

ladders;• New requirements for employee training and

retraining; and • Comments and cost-benefit analysis on

proposal to require employees to provide waterproof foot gear where wet processes are used

Increased OSHA Enforcement

OSHA enforcement is at historic levels• Issuing bold interpretations

More inspections and significant cases OSHA specifically interested in grain

handling industry• Region VI Emphasis Program

Enhanced Administrative Penalties Memorandum

Severe Violator Enforcement Program

OSHA Severe Violator Enforcement Program

SVEP: What Is It?

Enforcement policies to focus resources on employers “who have demonstrated indifference to their OSH Act obligations by committing willful, repeated, or failure-to-abate violations”

Replaces Enhanced Enforcement Program

States required to adopt the program or adopt an equivalent program.

SVEP: What Happens If I Am In It?

Enhanced Follow-up Inspections

Nationwide Inspections of Related Workplaces/Worksites

Increased Company Awareness of OSHA Enforcement

• Sending Citation and Notification of Penalty to Headquarters

• Issuing News Releases

• Posting on OSHA’s Webpage?

Sending Letters to Corporate Officers

Enhanced Settlement Provisions

Section 11(b) Enforcement

Citation and Enforcement:SVEP Program—Unanswered Questions

Unanswered Questions and Implications

It is not clear how an employer will be removed from the program.

Will an employer be released from the SVEP if OSHA conducts a follow-up inspection of the originally cited worksite and does not find any similar level of violations? Or is there something more an employer would need to do, such as comply with some or all of the enhanced settlement provisions described above?

It is not clear whether OSHA will face challenges from employers for probable cause if the agency attempts to conduct inspections of other worksites based upon a citation satisfying one of the criteria set forth in the directive, even though the citation is not yet a final order of the OSHRC.

OSHA Letters to Industry on Grain-Bin Entry Procedures

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 workers entering the bin,” wrote OSHA Administrator David Michaels.

Source: Purdue University Agricultural Safety and Health Program

2010 Totals70% on farm30% commercial

Letter to Industry on Grain Bin-Entry Procedures (cont.)

In the letter, OSHA reminded employees of the grain handling standard’s regulations and governing bin entry procedures.

OSHA has Grain Bin Entry Fact Sheet and recently developed Hazard Alert – Dangers of Engulfment and Suffocation in Grain Bins for employers and workers.

http://www.osha.gov/Publications/grainstorageFACTSHEET.pdf

http://www.osha.gov/SLTC/grainhandling/hazard_alert.html

US Department of Labor Proposed Child Labor Rules

On September 2, the U.S. Department of Labor (DOL) proposed substantial revisions to the department’s child labor regulations to ban youth under certain ages from engaging in specific types of work at off-farm agricultural business, as well as on farms not owned or operated by their parents. Some of the proposed changes include:

• Prohibit youth less than 18 from working at grain elevators, grain bins, silos, feedlots, stockyards, livestock exchanges and livestock auctions.

• Farm workers less than age 16 also generally would be banned from operating almost all power-driven equipment, as well as from participating in the cultivation, harvesting and curing of tobacco.  

• “Clarifying” the family farm exemption by assuring that children of individuals who operate, as well as those who own, farms are eligible to work.

•  

Education and Training

Training• Safety, Health and

Environmental and Grain Quality Conference, August 1-2, 2012

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

Education and Training (cont.)

http://www.grainentrapmentprevention.com/

Oklahoma Ag EXPO

Top OSHA Issues for 2012

Thank you!!

Jess McCluer

National Grain and Feed Association

202-289-0873

jmccluer@ngfa.org