Top Regulatory Issues Facing the Grain Handling Industry in Jess McCluer National Grain and Feed Association August 2, 2012

Size: px

Start display at page:

Download "Top Regulatory Issues Facing the Grain Handling Industry in Jess McCluer National Grain and Feed Association August 2, 2012"

Cornelius Price
5 years ago
Views:

1 Top Regulatory Issues Facing the Grain Handling Industry in 2012 Jess McCluer National Grain and Feed Association August 2, 2012

2 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

3 Top OSHA Issues for 2012 Continued Increased Enforcement Upon Grain Handling Industry Sweep Auger Letter of Interpretation Combustible Dust Rulemaking Rolling Stock Fall Protection

4 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

5 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

6 Source: Purdue University Agricultural Safety and Health Program

August 4 th 2010 and February 1 st 2011 Letters OSHA has investigated several cases involving worker entry into grain storage bins where we have found that the

7 August 4 th 2010 and February 1 st 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.

Enforcement-Heavy Philosophy Field Operations Manual amended to force up penalties: Doubled minimum penalties Halved allowable penalty reductions for size

8 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

9 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

10 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 Combustible Dust NEP Falls In General Industry LEP Injury & Illness Recordkeeping NEP

11 Regional and Local Emphasis Programs Region V grain handling o Illinois, Indiana, Michigan, Minnesota, Ohio, and Wisconsin Region VI grain handling o Arkansas, Texas, Oklahoma, and New Mexico Region VII grain handling o Missouri, Iowa, Nebraska, and Kansas Region VIII grain handling o Colorado, Wyoming, Montana, Utah, North Dakota, and South Dakota State Emphasis Programs o Iowa and Indiana

12 Proactive Targeting Philosophy OSHA Inspection Statistics (Federal and State) Total Inspection Percent Programmed Inspections Total Violations Issued FY09 FY10 FY11 FY12 (Oct- Dec) % 49% 55% 68% 858 1,289 1,

13 Most Frequently Cited OSHA Standards in Grain Handling Industry Grain Handling Standard Mechanical power-transmission apparatus Guarding floor and wall openings and holes Permit required confined space Wiring methods, components and equipment for use Most frequently cited standards in include: (j)(1) failure to implement a written housekeeping program (g) (1)(i) failure to issue a permit prior to entering a bin (g)(1)(ii) failure to deenergize and disconnect all equipment in a grain storage structure before employees enter (j)(2)(ii) failure to immediately remove fugitive dust accumulations, or provide equivalent protection (m)(3) failure to maintain a certification record of performed preventative maintenance inspections

14 Follow-up Inspections/Repeat Violations OSHA historically: OSHA now: 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) 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))

15 Follow-up Inspections/Repeat Violations Increased Follow-up Inspections = Increased Repeat Violations = Much Higher Penalties OSHA systematically laying groundwork for future Repeat violations by: 1. Issuing citations with numerous cited standards (often with lowdollar penalties) 2. OSHA settles these citations by reducing the penalty and/or reclassifying citations to Other Than Serious 3. OSHA conducts follow-up inspections at the same or a related facility

16 Increase in Repeat Violations from 2006 to 2010 Classification of Violations Percent Change Serious 22.1% Repeat & Willful 225.2% Other-than-Serious % Total 15.5%

17 Increase in Penalties from *

18 Increase in Penalties from $1,000,000 + Cases

Severe Violator Enforcement Program Severe

indifference to their OSH Act obligations by:

Repeat, or FTA citations related to a fatality

citations related to High-Emphasis Hazards 3+

19 Severe Violator Enforcement Program Severe Violators = Employers who demonstrate indifference to their OSH Act obligations by: Any egregious enforcement action 1+ Willful, Repeat, or FTA citations related to a fatality or catastrophe 2+Willful, Repeat or FTA citations related to High-Emphasis Hazards 3+ willful, repeat, or FTA citation related to potential release of a HHC

20 OSHA Sweep Auger Letter of Interpretation On 12/24/09 OSHA issued a letter pertaining to sweep auger operations within grain bins: (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

21 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 OSHA from enforcing interpretation of standard which would not allow anyone from working in bin.

22 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. Combustible Dust ANPRM 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

23 Combustible Dust Regulations and Compliance GHS Amendment to OSHA Hazard Communication Standard Final Rule: 3/26/2012 Effective Date 5/25/ 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

24 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.

25 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 level o Could have significant impact on daily operations o Further example of broad interpretation of letter of interpretation o 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

26 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

27 2012 NGFA Safety Projects Grain Handling Safety Best Practices Seminar/Webinar o Focus on complying with OSHA Grain Handling Standard o 7 Regional Sessions Kansas State Annual Dust Explosion Study o 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

28 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 Training Safety, Health and Environmental and Grain Quality Conference, August 1-2, 2012 Don t Go With the Flow NGFA and Purdue University entrapment rescue training video

29 Thank you! National Grain and Feed Association 1250 I Street, N.W. Suite 1003 Washington, DC Jess McCluer jmccluer@ngfa.org

Feed and Processing Industry in Jess McCluer National Grain and Feed Association October 30, 2013 Corpus Christi, TX

Top Regulatory Issues Facing the Grain, Feed and Processing Industry in 2013 Jess McCluer National Grain and Feed Association October 30, 2013 Corpus Christi, TX OSHA Bush and Obama Bush Administration