DEPARTMENT OF LABOR

Occupational Safety and Health Administration

29 CFR Parts 1910 and 1917

[Docket H-117]

RIN 1218-AA22

Grain Handling Facilities

AGENCY: Occupational Safety and Health Administration (OSHA), Labor.

ACTION: Final decision statement.

SUMMARY: OSHA is announcing its determination that the existing record for grain handling facilities is sufficient to support a conclusion regarding whether the 1/8 inch action level housekeeping provision should be extended beyond priority areas, and its decision, based on the existing record, not to extend the 1/8 inch action level provision beyond priority areas.

EFFECTIVE DATE: April 1, 1994.

FOR FURTHER INFORMATION CONTACT: Mr. James F. Foster, U.S. Department of Labor, Occupational Safety and Health Administration, Office of Information, room N3647, 200 Constitution Avenue, NW., Washington, DC 20210, (202) 219-8151.

SUPPLEMENTARY INFORMATION:

I. Background

On December 31, 1987, OSHA promulgated a final standard on grain handling facilities (52 FR 49592, 29 CFR Part 1910.272). Paragraph (i)(2) of that standard required grain elevators to initiate appropriate cleaning measures whenever grain dust accumulations reached a depth of 1/8 inch in "priority housekeeping areas." These areas included floor areas which are within 35 feet of inside bucket elevators; floors of enclosed areas containing grinding equipment; and floors of enclosed areas containing grain dryers located inside the facility. This provision of the standard was challenged in the U.S. Court of Appeals for the Fifth Circuit by the National Grain and Feed Association, and in the D.C. Circuit by the Food and Allied Service Trades Department, AFL-CIO. The cases subsequently were consolidated in the Fifth Circuit.

In its decision issued October 27, 1988, as amended January 24, 1989, the Court stayed enforcement of the 1/8 inch action level provision and remanded the standard to the Agency for consideration of two issues. First, the Court directed OSHA to further consider whether the 1/8 inch action level as applied to priority areas was economically feasible. Second, the Court directed OSHA to consider expanding the action level requirement to the entire facility.

OSHA's response to the first issue was completed on December 4, 1989. On that date, OSHA published a Supplemental Statement of Reasons (54 FR 49971), again concluding that it was economically feasible to apply the 1/8 inch action level to priority areas. By order dated April 25, 1990, the Court upheld OSHA's rationale on this issue, and lifted the stay of the provision, effective August 1, 1990.

With respect to the second issue, on June 14, 1990, the Secretary reported to the Court on the status of the Agency's review of the question pertaining to whether the action level should be expanded beyond the priority areas. In this report, OSHA concluded that (1) a substantial question existed as to whether the existing record, which closed in 1985, was sufficiently complete and current to support a conclusion on the remaining issue, and that (2) public comment about the contents of the record could assist the Agency in evaluating its adequacy.

Consequently, on December 10, 1990, OSHA published a Request for Information (55 FR 50722) in which the Agency invited comments on whether the existing record was adequate to support a conclusion regarding applying the 1/8 inch action level beyond priority areas. The Request for Information also requested comments on a series of questions designed to explore the record's scope and current relevancy. OSHA believed that comments would be useful in evaluating the capacity of the existing record to support conclusions about the feasibility and efficacy of expanding the action level housekeeping provision. Interested parties were given until March 11, 1991 to submit comments.

II. Adequacy of the Current Record

OSHA received 122 comments in response to the Request for Information. With respect to the issue concerning the adequacy of the current record, there was unanimity among commenters that the record is sufficiently complete and current to support a conclusion about expanding the 1/8 inch action level (e.g., Ex. 2: 9, 12, 22, 64, 111). For example, a commenter from the Food and Allied Service Trades Department, AFL-CIO (Ex. 2: 12, p. 9) stated:

[We] feel the current record is sufficiently complete to justify a facility-wide expansion of the dust action level. A significant burden to prove otherwise is on those who feel the record is incomplete.

A commenter from the National Grain and Feed Association (NGFA) (Ex. 2: 22, p. 6) remarked:

NGFA submits that the existing record is more than adequate for OSHA to conclude that extending the 1/8 inch action level to the whole facility is infeasible.

If the current record is deficient in any way, it is in the area of risk assessment and evaluation of potential benefits.

NGFA does not believe that the need to update risk analysis is reason alone for re-opening the record. But the clear fact is that, if the record is re-opened, this is one area where both risks and potential benefits of more regulation have been substantially overstated.

Additionally, a commenter from the International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America (Ex. 2: 64) said:

We feel that the current record regarding benefits, costs and feasibility of expanding the 1/8 inch facility wide action level is adequate. This is further substantiated by OSHA's acknowledgement of the adequacy of the current record during 1987 rulemaking activities.

Another commenter, from the Grain Elevator & Processing Society (GEAPS) (Ex. 2: 111, p. 5) stated:

GEAPS suggests that the current record is adequate to determine that the additional benefits vs. costs clearly indicate that expanding the 1/8-[inch] action level to the entire facility is neither feasible nor cost effective.

After careful evaluation of the information and data submitted to the record in response to the Request for Information, OSHA believes that the technology, financial considerations, methods of operation, and dust-control methods have not changed significantly since 1984. Therefore, the Agency has determined that the existing record is sufficiently complete and current to support a conclusion about whether or not the 1/8 inch action level in grain elevators should be expanded.

III. Whether the Action Level Should Be Expanded Beyond Priority Areas

Based on its review of the rulemaking record, OSHA has concluded that it will not expand the 1/8 inch action level beyond priority areas. These conclusions are based on the following considerations.

The great majority of primary explosions in grain elevators occur in well-defined areas, which OSHA has designated priority areas. Reducing the risk of a primary explosion will consequently reduce the possibility of a secondary explosion. These well-defined areas are where the known potential ignition sources are concentrated. OSHA believes it has specified rigorous measures to control ignition sources in priority areas. Requirements addressing the control of ignition sources include the following.

(1) To keep equipment functioning properly and safely, facilities must perform regular preventive maintenance, such as inspection and lubrication, for all grain facility machinery (e.g., bucket elevators and dust collection systems);

(2) Grain dryers at elevators must be capable of automatic shutoff if excessive temperatures are detected, and any new dryers must also be located outside the grain elevator, be protected by an explosion suppression system, or surrounded by fire-resistant walls;

(3) Bucket elevators must be equipped with monitors that will automatically shut down the bucket elevator in the event of a malfunction;

(4) Bucket elevators cannot be jogged to free a choked leg;

(5) Bearings inside bucket elevator casings must be equipped with vibration or heat sensors;

(6) Belts and lagging must have surface electrical resistance not to exceed 300 megohms to avoid the buildup of static electricity;

(7) Employees must be trained to recognize and prevent common ignition sources such as smoking;

(8) Grate openings in receiving-pits must be no more than 2 1/2 inches wide to screen out large objects from the grain stream and consequently from bucket elevators;

(9) Contractor requirements are intended to assure that grain facility employers know what work is being performed at the facility by contractors (e.g., welding and other hot work), where it is being performed, and that it is being performed in a manner that will not endanger employees.

Additionally, the housekeeping provisions of the standard (applicable to grain elevators and mills) require careful control of fugitive grain dust emissions not only in priority areas. In Appendix A, OSHA has described the basic elements of an adequate housekeeping program. The employer must analyze the entire stock handling system to identify sources of dust and effective controls. Based on that information, the employer is to develop a schedule for cleaning, inspection and maintenance that is capable of "best reducing" emissions from the identified sources. The schedule is to give priority to areas with numerous ignition sources. The plan must incorporate cleaning techniques for difficult-to-reach areas such as rafters. The plan must address contingencies such as equipment breakdown. Provision must be made for access to enclosed mechanical systems. If the employer's written housekeeping program does not reflect these and similar assessments and plans, OSHA will consider the program inadequate on its face. If the employer does not follow the written program, OSHA will consider the program inadequate as applied (OSHA Compliance Directives 2-1.4B, 1988, and 2.35, 1990). Substantial accumulations of grain dust are citable under the existing standard, since they indicate the existence of an inadequate housekeeping plan. To reiterate, a written housekeeping program must be developed and implemented for the entire facility, not just priority housekeeping areas. This provision is intended to assure that dust accumulations are periodically removed throughout the facility, and to minimize the possibility and severity of secondary explosions (and the resulting deaths and injuries).

In addition to developing and implementing a systematic program of scheduled housekeeping that will "best reduce" dust in grain elevators and mills, the grain elevator employer must immediately clean up dust accumulations whenever they reach 1/8 inch in depth anywhere within 35 feet of inside bucket elevators or floors of enclosed areas containing grinding equipment or grain dryers. As OSHA explained when the standard was promulgated, these areas are designated priority areas because they contain the greatest concentration of ignition sources and involve the majority of explosions (52 FR 49611). Including a specific compliance requirement in the generally performance-oriented housekeeping program has the effect of supplying OSHA with an objective measure of compliance in the most hazardous areas while preserving for employers flexibility in areas with few moving parts or ignition sources.

In OSHA's judgment, the available evidence offers no basis for anticipating a significant additional benefit resulting from the imposition of the action level requirement on non-priority areas. First, any estimate of additional benefit due to expanding the action level requirement must reflect the extensive housekeeping, ignition control, employee training, hot work restrictions, and other safety measures that are already being imposed by the standard. Secondly, the vast majority of grain elevators will not be affected by expansion of the action level housekeeping requirement, because they are small country elevators which have little if any non-priority area. See RIA p. VI-26, Table VI-8; 54 FR 49974 Table I, n. 1, Table II (Dec. 4, 1989). Finally, while many of the incident reports currently in the record show that the elevators where fires or explosions occurred were dusty and therefore support OSHA's conclusions that systematic and comprehensive housekeeping helps to eliminate or reduce the severity of grain dust explosions, they provide no basis for inferring that adding a facility-wide action level to the existing housekeeping requirements would appreciably contribute to safety. None of the respondents to OSHA's Request for Information suggested that the incident reports were deficient or misleading in this regard or that other incident reports not in the record could show significant benefit attributable solely to the use of an action level in non-priority areas. Accordingly, the incident profiles provide no basis on which OSHA could project additional safety benefits due to action level housekeeping in non-priority areas.

Although OSHA recognizes the importance of grain dust depth, the record indicates that the consistency of housekeeping throughout facilities is far more important. As noted above, substantial accumulations of grain dust in non-priority areas are now subject to citation under the current standard, since they indicate the existence of an inadequate housekeeping plan. The current standard, for example, more than adequately prohibits the kinds of accumulations reported to have occurred prior to promulgation of the standard. (See, e.g., 54 FR 49610-49611.) As suggested in the preamble to the standard (52 FR 49610, 49611) expanding the action level to non-priority areas holds the potential for diverting housekeeping attention to areas where minimizing grain dust is less critical. In the absence of any documented benefits to be gained from expanding the action level, OSHA declines to do so.

OSHA's original estimates of the standard's effectiveness were conservative. In factoring in unavoidable human error, unpreventable mechanical failure, and acts of nature such as lightning strikes or static electricity, OSHA chose to err on the side of understating the standard's actual effectiveness. Although OSHA was confident that the standard's housekeeping requirements and ignition control requirements each would contribute to the standard's effectiveness, it recognized the possibility that there would also be some degree of overlap in efficacy. For this reason also, OSHA applied efficacy projections for the standard at the low rather than the high end of the probability scale. In consequence, OSHA explained in 1987 that it was not predicting that the standard would eliminate all significant risk of injury and death due to grain elevator explosions. (52 FR 49622.) At the same time, however, it was clear that the standard's actual efficacy was likely higher than the calculations indicated. Correspondingly, the margin of residual risk that could be affected by adjustments to the standard, such as adding an action level to non-priority area housekeeping, is less than the 1987 calculations indicated.

OSHA's determination not to expand the action level requirement is based on the rulemaking record that closed in 1985. It is worth noting, however, that responses to the 1990 Request for Information (55 FR 50722) that discussed industry experience since the close of the record tend to confirm OSHA's conclusion. None of the commenters who cited post-rulemaking explosions as grounds for expanding the action level requirement pointed to evidence that lack of an action level contributed to the explosions or their severity. Some of the commenters who supported expansion of the action level requirement did so not because they believed the action level per se contributed to safety, but because it would increase the cost of sweeping as a method of compliance and thereby increase the elevator operator's incentive to use engineering controls for dust containment instead of sweeping.

Accordingly, OSHA has determined not to expand the 1/8 inch action level in grain elevators.

Authority

This document was prepared under the direction of Joseph A. Dear, Assistant Secretary of Labor for Occupational Safety and Health, U.S. Department of Labor, 200 Constitution Avenue NW., Washington, DC 20210, in response to the order of the U.S. Court of Appeals for the Fifth Circuit in National Grain and Feed Association v. OSHA, 866 F.2d 717 (5th Cir. 1989). See also National Grain and Feed Association v. OSHA, 903 F.2d 308 (5th Cir. 1990). It is issued under section 6(b) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 655(b)); section 41 of the Longshore and Harbor Worker's Compensation Act (33 U.S.C. 941); Secretary of Labor's Order No. 1-90 (55 FR 9033); and, 29 CFR part 1911.

Signed at Washington, DC this 25th day of March, 1994.

Joseph A. Dear,
Assistant Secretary

[FR Doc 94-7803 Filed 3-31-94; 8:45 am]