Top Regulatory Issues Facing the Grain Handling Industry in Jess McCluer National Grain and Feed Association March 21, 2012

Transcription

1 Top Regulatory Issues Facing the Grain Handling Industry in 2012 Jess McCluer National Grain and Feed Association March 21, 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 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

5 Source: Purdue University Agricultural Safety and Health Program 2010 Totals 70% on farm 30% commercial

6 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

7 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

8 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 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

9 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

10 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

11 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,

12 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

13 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))

14 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

15 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%

16 Increase in Penalties from *

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

18 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

19 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

20 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.

21 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, 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

22 What s Next? Last year OSHA convened Combustible Dust Expert Panel to discuss regulatory options and their 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 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.

23 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 Unclassified 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

24 Rolling Stock Fall Protection FGIS cited by OSHA in July 2012 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 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

25 2012 NGFA Safety Projects Grain Handling Safety Best Practices Seminar/Webinar o Focus on complying with OSHA Grain Handling Standard o 4 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

26 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

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