Grain Handling Facilities

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.

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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]

BILLING CODE 4510-26-F