OSHA Update on Emerging Issues

Jess McCluer

WABA Safety Day

July 11, 2019

Topics

• OSHA Leadership

• FY18 OSHA Inspection Data

• NGFA-OSHA Alliance

• OSHA 2019 Semi Annual Regulatory Agenda

• Combustible Dust

• Education and Training

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OSHA Political Appointees

Former Nominee for Assistant Secretary of OSHA

Scott A. Mugno

VP of Safety at

FedEx Ground

Loren Sweatt

Deputy Assistant Secretary of OSHA

Sr. Policy Advisor to House

Ed. & Workforce Committee

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Scott Mugno Withdraws Name for

Consideration as Assistant Secretary

• Originally nominated in October 2017. Renominated in 2019.

• Withdrew his name from consideration on May 14, 2019.

• His confirmation had been delayed in part by threats from Senator Patty Murray (D-WA) to filibuster Trump nominees for the Department of Labor (DOL).

• Likely means that, for the first time in its history, OSHA will not have an assistant secretary in charge of the agency for an entire presidential administration. The next presidential election is 18 months away, which will make it difficult to find a willing nominee.

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What Happens Next?

• Will likely leave Deputy Assistant Secretary of Labor Loren Sweatt in charge of the agency until at least the 2020 presidential election.

• Her job has always been to keep the ship afloat until the permanent Assistant Secretary of Labor for Occupational Safety and Health arrives.

• Even if given full reign at OSHA, acting assistant secretaries do not have a track record of taking drastic actions during their tenures.

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OSHA Enforcement, Inspection Data and Programs

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Total Fed/State OSHA Inspections

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61,016

57,124 54,859

51133 50,436

46,909 43,471 43,105 43,551

39,004 40,993

36,109

40,961 39,228

36,163 35,820 31,948 32,396

0

10000

20000

30000

40000

50000

60000

70000

FY09 FY10 FY11 FY12 FY13 FY14 FY15 FY16 FY17

State Plans Federal

16 17 19

31

11 8

20 17

14 11 11

15 17

22

26

19

11

13 21

10 18 12

0

10

20

30

40

50

60

2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017

An

nu

al In

cid

en

ts

Year

U.S. Grain Entrapments/Engulfments

Non-Fatal

Fatal

Current OSHA Enforcement Policy

• OSHA continues to

implement the same number of enforcement emphasis programs as at the end of the Obama Administration: • 150 Local and Regional

Emphasis Programs • 9 National Emphasis

Programs (+ new Chem/Ref PSM NEP)

• Announced new Site-Specific Targeting Program

National Emphasis Programs: • Combustible Dust • Federal Agencies • Hazardous Machinery • Hexavalent Chromium • Lead • Primary Metal Industries • Chem/Ref PSM NEP • Shipbreaking • Trenching and Excavation

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Field Operations Manual (FOM) 2019 Update

• Revising 2016 FOM with current guidance, including:

• Updated guidance and procedures reflecting recent enforcement history

• Updated guidance related to tracking information in OIS system

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Emphasis Programs for Grain, Feed and

Processing

• National

• Combustible Dust

• Hazardous Machinery

• Regional

• Powered Industrial Trucks

• High Hazard Safety & Health Workplaces

• Fertilizer Grade Ammonium Nitrate & Agricultural Anhydrous Ammonia facilities

Enforcement Emphasis Programs

• Local

• Grain Handling

oRegion V (IL, IN, WI, MI, OH) 10/01/2018

oRegion VI (AR, LA, NM, OK, TX) 10/01/2018

oRegion VII (IA, KS, MO, NE) 10/01/2018

oRegion VIII (CO, MT, ND, SD, UT, WY) 10/01/2018

oRegion X (AK, ID, OR, WA) 12/31/18

Enforcement Data

Grain Inspections FY 18 NAICS

• 311211- Flour milling

• 311212 - Rice milling

• 311119 - Other animal food manufacturing

• 311224 - Soybean & Other Oilseed Processing

• 424510 – Grain & field bean merchant wholesalers

• 493130 – Farm product warehousing and storage

FY18 Federal & State Inspection Data

NAICS # of Insps # of Citations Issued Avg $ per Ser

SWR OTS

311119 80 152 59 $4,164

311211 21 39 12 $9,251

311212 11 3 11 $10,868

493130 8 152 59 $4,164

424510 133 220 53 $4,444

311224 12 14 18 $4,259

Total 265 580 212

Federal & State Inspection Data

Federal State Plan Total

Inspections Conducted

183 99 270

% Programmed 23% 32%

% Unprogrammed 77% 68%

Total Violations Issued

405 243 616

% Violations Issued as S

67% 64%

% Violations SWRU 74% 64%

Combined NAICS: 311211, 311212, 311224, 311119, 424510, 493130

Unprogrammed Activity Breakdown

Event/Scope Federal State Plan Total

Complaint 52 19 71

Fat/Cat 11 3 14

Accident ---- 10 10

Follow-Up 21 2 23

Monitoring 6 ----- 6

Referral 10 16 26

Employer Reported Referral 33 7 40

Unprogrammed Related 7 10 17

Top 10 Most Frequently Cited OSHA Standards

in FY2018

1. Fall Protection, Construction 7,216 violations 2. Hazard Communication 4,537 violations 3. Scaffolds, Construction 3,319 violations 4. Respiratory Protection 3,112 violations 5. Lockout/Tagout 2,923 violations 6. Ladders, Construction 2,780 violations 7. Powered Industrial Trucks 2,281 violations 8. Fall Protection, Training 1,978 violations 9. Machine Guarding 1,969 violations 10. PPE – Eye and Face Protection 1,528 violations

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Top 10 Violations in Grain, Feed and Processing Industry

(Nationwide)

1. Grain Handling (1910.272)

2. Mechanical Power Transmission (1910.219)

3. Fall Protection (1910.28)

4. Powered Industrial Trucks (1910.178)

5. Respiratory Protection (1910.134)

6. Lockout/Tagout (1910.147)

7. Machine Guarding (1910.212)

8. Permit Required Confined Spaces (1910.146)

9. Ladders (1910.23)

10. Electrical (1910.303)

Most frequently cited OSHA standards during FY 2018 inspections

Top Ten Grain Handling Violations – 1910.272

Standard Description # SWRU

# OTS Total

# S # W # R

1910.272(g) Entry into grain structure

35 6 1 3 45

1910.272(m) Preventative Maintenance

14 7 0 7 28

1910.272(j) Housekeeping 10 6 1 6 23

1910.272(e) Training 8 0 0 7 15

1910.272(d) Emergency Action Plans

3 1 0 1 5

Data specific to the 6 Grain Handling NAICS

Top Ten Grain Handling Violations – 1910.272

Standard Description # SWRU

# OTS Total

# S # W # R

1910.272(h) Entry into Flat Storage

2 2 0 1 5

1910.272(k) Grate openings 2 0 0 0 2

1910.272(l) Filter Collectors 1 0 0 0 1

1910.272(n) Grain Stream Processing Equipment

1 0 0 0 1

Data specific to the 6 Grain Handling NAICS

Increased OSHA Citation Penalties

Characterization Historical Max

Penalties

Aug. 2016 (after

“catch-up”)

Jan. 2019 (latest

annual bump)

Other than Serious $7,000 $12,471 $13,260

Serious $7,000 $12,471 $13,260

Willful $70,000 $124,709 $132,589

Repeat $70,000 $124,709 $132,589

Failure to Abate $7,000 per day $12,471 per day $13,260 per day

Criminal (willful violation causes worker death)

$250,000 for Individual and 6 Months

in Prison

$500K for Corporate Defendants

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Top Avg. Penalty per Citation

• 1910.272(m)(1)(i) – Lubrication and appropriate maintenance - $58,012

• 1910.272(j)(1) – Implement housekeeping program - $54,068

• OSH Act Section 5 (a)(1) – General Duty Clause - $23,265

• 1910.272(g)(1)(ii) – De-energize hazardous equipment in bin - $22,665

• 1910.272(g)(1) – Grain Bin Entry procedures- $14,953

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NGFA/OSHA Alliance

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Hazards of The Industry

1 • Engulfments

2 • Falls

3 • Electric

4 • Entanglement

5 • Struck by

6 • Dust Explosion

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OSH

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NGFA and OSHA Alliance

• NGFA has signed a joint agreement with OSHA focusing on outreach and communication.

• Goal is to enhance communication between NGFA-members, State/Regional affiliates and Regional/Area offices.

• Accomplished through speaking engagements, facility tours, Web pages and newsletters.

• Option to renew Alliance after 5 years and to then focus on substantive issues/projects.

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• Gathering and sharing of recommended practices or effective approaches;

• Participating in industry and/or OSHA conferences, meetings and events;

• Host awareness events – Grain Stand Up Engulfment Prevention Week

• Encouraging future collaborations among NGFA affiliates and OSHA

Alliance Activities

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Stand Up for Grain Safety Week 2018

and 2019

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Stand Up for Grain Safety Week 2019

• The NGFA and OSHA hosted a major safety outreach effort, the “Stand-Up for Grain Safety Week” from March 25-29, to help raise awareness about grain handling and storage hazards, provide education and training, and convey safety best practices.

• The event focused on grain bin entry, machine guarding, respiratory protection, falls, heat, lockout/tagout, and other industry issues.

• The National Stand-Up for Grain Safety Week Kick-Off Event was held at the Asmark Institute Agricenter on March 25 in Bloomington, IL. The Deputy Assistant Secretary of OSHA, Loren Sweatt is confirmed to attend.

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Stand Up for Grain Safety Week 2019

• A website has been developed by NGFA and OSHA that provides resources for companies to use when they are conducting “Stand Ups” to promote safety.

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OSHA and Grain Handling Issues for 2019

OSHA Spring 2019 Semi-Annual Regulatory

Agenda

• E-Recordkeeping Rule Final Rule Stage

• Emergency Response and Preparedness Prerule Stage

• HazCom Standard Proposed Rule Stage

• Lockout/Tagout Prerule Stage

• Powered Industrial Trucks Prerule Stage

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Injury and Illness Recordkeeping and Reporting

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Electronically Submitting Injury and Illness Data

December 15, 2017:

Covered employers must electronically submit their 2016

OSHA Form 300A to OSHA. Based on establishment size 20

or more, 250 or more and NAICS codes.

1904.41 Electronically submitting injury, illness data

• 2016 data: Submit by: December 15, 2017

• 2017 data: Submit by: July 1, 2018

• 2018 data and forward: Submit by: March 2, 2019…

Electronically Submitting Injury, Illness Data

January 21, 2019:

1904 Final Rule amended – Tracking of Workplace Injuries

and Illnesses Rule

Effective date = February 25, 2019

• Establishments with 250 or more employees no longer

required to submit 300 and 301

• ALL establishments required to submit must submit EIN

Revised Recordkeeping Rule

• OSHA has determined that this rule will benefit worker privacy by preventing routine government collection of sensitive information, including descriptions of workers’ injuries and the body parts affected, thereby avoiding the risk that such information might be publicly disclosed under the Freedom of Information Act or through OSHA’s Injury Tracking Application.

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Emergency Preparedness and Response

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Emergency Preparedness and Response

• Current OSHA emergency response and preparedness standards are outdated and incomplete.

• They do not address the full range of hazards facing emergency responders, lag behind changes in protective equipment performance and industry practices, conflict with industry consensus standards, and are not aligned with current emergency response guidelines of other federal agencies (e.g., DHS/FEMA).

• OSHA intends to update / replace existing 29 CFR 1910.156, Fire Brigades standard.

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Emergency Preparedness and Response

• The primary concern is that whatever requirements are placed upon the ERP, it is certainly going to carry over to organizations that they work with such as grain handling facilities. Some examples include: 1) additional paperwork burdens related to preincident planning; 2) responder preparedness e.g. training and certification and facility; and 3) equipment preparedness, to name a few.

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Emergency Preparedness and Response

• OSHA’s agenda indicates that the agency plans to convene several Small Business Advocacy Review (SBAR) (also known as SBREFA) panels in 2019, including the Emergency Response and Preparedness. Several members of the SHEQ committee have already volunteered to serve as a small entity representatives (SER) with this panel when it is formally convened by the agency to review and provide comments on the draft rule.

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Powered Industrial Trucks

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OSHA to Rewrite PIT?

• On March 11, 2019, OSHA issued a Request for Information (RFI) in the Federal Register seeking comments and information from stakeholders regarding the use of powered industrial trucks (PITs) for maritime (1915.120, 1917.43, 1918.65) construction, (1926.602(c), (d)), and general industries (1910.178).

• OSHA is considering revising current standards regarding PITs and this information will assist the agency in determining what actions, if any, it will take in revising these standards. Comments are due on June 10.

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OSHA to Rewrite PIT?

Specifically, the RFI seeks information in various categories and outlines specific questions for each category of information requested such as:

• Types of Powered Industrial Trucks

• Truck Operations, Maintenance, and Training

• Incidents and Injuries

• Consensus Standards

• Compliance Issues

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NGFA Comments

Specifically, NGFA recommended the following revisions to the current standard:

• Clarify the definition of a “skid steer” and exemption from the

PIT. Currently, certain types of skid steers are defined and exempted only through letters of interpretation.

• Request that OSHA be mindful of incorporating revised voluntary consensus standards i.e. ANSI B56 into their regulations since no economic analysis are conducted before implemented.

• Streamline the training and “certification” requirements since they are repetitive.

• Allow the user or owner of the equipment to “derate” the nominal capacity of the vehicle instead of the manufacturer.

• Remove the 25 ft. rule from the determining if a vehicle is unattended.

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Globally Harmonized Standard for Labelling

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More Updates to HazCom Coming?

• 2012 HazCom update aligned OSHA’s rule w/ GHS Rev. 3 (2009)

• Since HCS 2012, GHS up to Rev. 7 (2017)

• Where there is conflict, reliance on GHS is a violation

• OSHA is working on proposed revisions to HazCom again:

• Realign HazCom w/ more current version of GHS

• Address issues identified in 2-4 years of HCS 2012 implementation

• Not de-regulatory (enhance or maintain current protections)

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Lockout/Tagout

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Lockout/Tagout

• On May 18, 2019, OSHA issued a Request for Information (RFI) seeking “information regarding two areas where modernizing the Lockout/Tagout standard might better promote worker safety without additional burdens to employers: control circuit type devices and robotics.”

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Lockout/Tagout

Control Circuit Type Devices • OSHA’s Lockout/Tagout standard currently requires that all

sources of energy, including energy stored in the machine itself, be controlled during servicing and maintenance of machines and equipment using an energy-isolating device (EID). But control circuit type devices are specifically excluded from OSHA’s definition of an EID.

• Because of technological advances since the standard was issued in 1989, OSHA has recognized that control circuit type devices may be at least as safe as EIDs.

• OSHA requests information, data, and comments that would assist the agency in determining under what conditions control circuit type devices could safely be used for the control of hazardous energy.

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Lockout/Tagout

• When OSHA adopted the Lockout/Tagout standard in 1989, the agency could not have contemplated the recent and rapid advancement in robotic systems. These systems can now move independently and adapt to new circumstances and information in a workplace – – machines that “think” while they work.

• Increasingly, manufacturers and other employers have asked OSHA to embrace safe robotic systems, often through requests for variances from the standard. OSHA may grant a variance to an employer if it can demonstrate that the infeasibility of deenergization and the safety features that make maintenance of an energized system as safe as or even safer than adherence to the standard.

• In response to these developments, OSHA is requesting comment from stakeholders on a potential update to the standard to accommodate the use of the evolving technology of robotics, as well as the use of control-circuit type devices to isolate energy.

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National Fire Protection Association

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• National Fire Protection Association’s NFPA 652: Standard on the Fundamentals of Combustible Dust, 2016 editionwas created to promote and define hazard analysis, awareness, management and mitigation of hazards associated with combustible dust within facilities. • The standard requires a facility processing or handling combustible dust to

perform a Dust Hazard Analysis (DHA) for each operation that handles such dust. The standard allows three years to complete this DHA.

• NFPA 61, Standard for the Prevention of Fires and Dust Explosions in Agricultural and Food Processing Facilities is the primary voluntary standard applied to the grain handling industry. • A DHA section is being included in the standard with a checklist specifically

designed for agricultural facilities. The revised version of the standard is expected to be published in 2020. Therefore, if the AHJ requires facilities to comply with NFPA 61, then they would be obligated to perform a DHA.

NFPA 61 and Dust Hazard Analysis

• NFPA Standards Council has requested that NFPA Combustible Correlating Committee weigh the pros and cons of combining all of the combustible dust standards into one document. This is the first step in creating one standard.

• Overall, the grain, feed, processing and milling reps on the NFPA 61 committee believe that NFPA 61 should not be combined, either in substance or in form, with other combustible dust standards and that it should remain a free-standing standard.

• As a result, one size does not fit all because many new concepts and operational practices cannot be applied to existing facilities or new construction without great costs and design changes that are not even necessary.

Combine All Combustible Dust Standards

into One Document

Education and Training

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NGFA Education and Training (cont.)

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• NGFA Regional Safety Seminars

Conducted with our Regional/State Affiliates and is funded through the generosity of the National Grain and Feed Foundation.

• Kansas Grain and Feed Association, Jan. 15 in Manhattan, Kan.

• Nebraska Grain and Feed Association, Feb. 7 in Kearney, Neb.

• Texas Grain Elevator Association, Feb. 14 in Amarillo, Tex.

• North Dakota Grain Dealers Association and the Minnesota Grain and Feed Association, March 27 in Fargo, N.D.; and

• Pacific Northwest Grain and Feed Association, April 25 in Spokane, Wash.

• Established in 1965, the National Grain and Feed Foundation supports public education and research projects that benefit the grain, feed and processing industry, enhance the industry’s presence to the public, and positions it for future growth. The Foundation is funded entirely by voluntary corporate and individual contributions. As a 501(c)(3) charitable organization, contributions to the Foundation are tax deductible.

CONVEY 19 – Summer of Safety

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Thank You

National Grain and Feed Association

1400 Crystal Drive

Suite 260

Arlington, VA 22202

Jess McCluer

202-289-0873 | jmccluer@ngfa.org

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