[Federal Register Volume 59, Number 63 (Friday, April 1, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-7803]


[[Page Unknown]]

[Federal Register: April 1, 1994]


=======================================================================
-----------------------------------------------------------------------

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]
BILLING CODE 4510-26-F