Oklahoma Ag EXPO
Top OSHA Issues for 2012
November 3, 2011
Oklahoma City, OK
Jess McCluer
National Grain and Feed Association
About NGFA

More than 1,000
member companies
representing:
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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 (biweekly 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
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Sweep augers
Combustible dust
Fall protection
Increased inspections
Severe Violator
Enforcement Program
OSHA Sweep Auger Letter of
Interpretation
OSHA Sweep Auger
Letter 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?
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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
•
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“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


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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?
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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

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More inspections and significant cases
OSHA specifically interested in grain
handling industry
• Region VI Emphasis Program
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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?
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Enhanced Follow-up Inspections
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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
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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.
2010 Totals
70% on farm
30% commercial
Source: Purdue University Agricultural Safety and Health Program
Letter to Industry on Grain BinEntry 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.htm
l
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

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 12, 2012
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