OSHA Alive and Well With Budget Increase

The U.S. Occupational Safety and Health Administration is hard at work beefing up enforcement and making changes to its regulations and enforcement programs, both transparent and not so transparent. Several are worth ethanol producers’ attention.

For years, OSHA has been promising to streamline of its Process Safety Management Standard to reduce the burden on employers. Unfortunately, no progress has been made or forecast. In the meantime, OSHA continues to apply its PSM National Enforcement Program, which increases the likelihood that PSM-covered chemical facilities, including ethanol plants, will be inspected. Both programs are designed to protect employees from hazardous releases of dangerous chemicals, including ethanol and certain byproducts of the ethanol production process.

PSM inspections are time intensive and can result in significant citations and proposed penalties. The proposed penalties in the BP Petroleum cases were in the millions of dollars.

Grain handling facilities of all kinds fall within the reach of OSHA’s Grain Handling Local Emphasis Program in OSHA’s Region 5, which includes Wisconsin, Minnesota, Illinois, Indiana, Michigan and Ohio. Although grain engulfment hazards are the primary target of such an inspection under the LEP, the inspections also focus on machine entrapment hazards, amputation hazards, fall hazards, auger entanglement and even combustible dust. 

Grain inspections often result in significant proposed penalties for violations of OSHA’s Grain Standard, which incorporates Confined Spaces Standard requirements, OSHA’s Walking-Working Surfaces Standard, its Machine Guarding Standard and, in the case of alleged combustible dust, either OSHA’s Housekeeping Standard or the OSHAct’s General Duty Clause.  A fatality or serious injury resulted from any such violation can result in very steep proposed penalties.

A sister NEP to OSHA’s Grain Handling LEP is OSHA’s Combustible Dust NEP.  One of the dusts listed in the “purpose” clause of the NEP is “organic dusts such as … flour …,” and one of the “industries that handle combustible dusts” listed in the NEP is agriculture, including ethanol production.

Combustible dust has been, and continues to be, a focus of OSHA both with and without a specific standard. The accumulation of such dusts, in OSHA’s view, can result in fire or explosion. Some of the most visible and highest-proposed penalty OSHA cases in the past 10 years have been combustible dust cases.

In November, OSHA published a notice of its intention to create a new injury and illness reporting regulation. It would require employers of 250 or more employees to submit detailed data on all worker injuries and illnesses quarterly, and would require employers of 20 to 249 employees to submit reports annually. The data would include not just information from a covered employer’s logs, but also employee numbers, geographic location, hours worked, and other arguably-confidential (to employer and employee) and proprietary information. OSHA would publish the data on its website for public access.

The rule raises serious problems of confidentiality, accuracy and use or misuse by both innocent and not-so-innocent parties. As of now, it would not allow for the correction of any submitted data. The apparent goal of the rule is to shame employers by the publication of raw data that very often will be inaccurate and incomplete.

In another rulemaking effort, OSHA has proposed requiring employers to report any hospitalization of a single employee within eight hours. Presently, employers must report only hospitalizations of three or more employees resulting from the same incident within eight hours. The new proposal also would require the reporting of any and all amputations within 24 hours.  At present, only point of operation amputations on mechanical power presses need be reported. (In fact, any point of operation injury on a mechanical power press must be reported.) And the report must be made within 30 days after the injury’s occurrence.

All ethanol producers would be wise to go through their attorneys, for privilege, to retain the services of a consulting expert to evaluate, at a minimum, their PSM programs and practices, confined spaces programs and practices, lockout/tagout programs and practices, fall protection and housekeeping programs and practices. If programs or practices need to be reformed, the producers should modify them to protect against legal exposure in the event OSHA comes knocking. Producers also should keep an eye on developments at OSHA in the area of recordkeeping and reporting, as well as in substantive areas like combustible dust, in order to keep abreast of what OSHA is intending to require.

Author: Eric Hobbs
Attorney, Michael Best & Friedrich LLP
414-225-4991
[email protected]