National Grain and Feed Association and Great River Grain Corporation v. Occupational Safety and Health Administration, Food and Allied Service Trades Department, Afl-Cio v. Ann D. McLaughlin Secretary of Labor
Docket: 88-4256
Court: Court of Appeals for the Fifth Circuit; October 27, 1988; Federal Appellate Court
In December 1987, OSHA established a new standard aimed at mitigating the risks of fires and explosions in grain-handling facilities under the OSH Act. This standard includes a provision requiring grain elevator operators to initiate clean-up when grain dust accumulates to 1/8 inch in designated "priority areas." Labor unions argue that this threshold is insufficient, advocating for a facility-wide implementation that includes grain mills, while grain mill operators support OSHA's decision to exclude mills from this requirement. Industry representatives contend that the action level is unwarranted, arguing that its costs outweigh potential benefits and that it does not significantly reduce risks. The court found insufficient evidence to support OSHA's economic-feasibility assessment or its decision against a broader action level, leading to a remand for further evaluation on these issues. Other aspects of OSHA's grain-facilities standard were upheld. The backdrop of this regulatory action includes historical fires and explosions, notably a catastrophic series in December 1977 that prompted increased safety scrutiny from various government agencies.
OSHA implemented multiple measures to improve safety in the grain elevator industry, including issuing a Hazard Alert and providing free on-site consultations. Efforts to enforce the general-duty clause and housekeeping regulations faced significant industry resistance, with employers often successfully arguing against OSHA's claims regarding fire and explosion risks. In 1978, OSHA commissioned studies on grain elevator fire causes and prevention, involving the National Academy of Sciences and experts like Charles Kauffman and Robert Hubbard, while USDA and NIOSH conducted concurrent studies on worker safety. Reports from these studies agreed that grain elevator explosions result from four key factors: accumulation of grain dust, suspension of that dust in air above its lower explosive limit, ignition of the dust, and sufficient dust to sustain combustion.
Dusty conditions can lead to primary explosions that create dust clouds capable of igniting secondary explosions, which are far more destructive. Between 1979 and 1981, secondary explosions caused 96% of property loss, 85% of fatalities, and 91% of injuries from major grain elevator incidents. Even minimal dust accumulations can trigger explosions, with the USDA noting that as little as 1/16 inch of dust can initiate a primary explosion, while NIOSH found that a dust layer of 1/64 inch in a 10-foot enclosure can create an explosive dust cloud. The NAS emphasized that visible dust accumulation indicates potential explosion hazards. Grain handling processes inherently produce dust, particularly during activities like delivery and mechanical transfer within the elevator system.
Grain is discharged into a scale bin for weighing, then transported via a conveyor up to 100 feet into a storage bin or silo. The grain may be re-elevated for mixing or shipment and is typically elevated and dropped into the silo at least twice. Grain dust settles on surfaces throughout the facility, with accumulations near the leg posing significant hazards due to multiple ignition sources. Studies indicate that comprehensive dust control is crucial in preventing fires and explosions, with findings suggesting that many incidents could have been avoided through effective housekeeping and proper dust-control system installation. Despite the challenges in completely eliminating dust explosion risks, prioritizing dust control is essential. Proper housekeeping practices can significantly reduce dust accumulation, especially in hidden areas, and while ignition sources cannot be completely eliminated, their risk can be mitigated. Recommendations include maintaining layered dust below 1/8 inch.
In 1980, OSHA sought input on grain-handling practices and dust accumulation standards. Following this, OSHA drafted a proposed rule in December 1982 covering all milling operations and grain elevators, incorporating comprehensive fire and explosion control systems based on NAS recommendations. This included training, preventive maintenance, engineering controls, and a housekeeping program requiring dust cleanup when accumulations reached 1/8 inch over 200 square feet. After stakeholder feedback, the draft was sent to the Office of Management and Budget for review.
OMB expressed concerns regarding the necessity of a new standard in light of current industry safety practices and questioned the potential safety benefits of OSHA’s draft standard. They recommended exempting mills and small elevators from the standard and proposed alternatives to the 1/8-inch housekeeping action level, such as a once-per-shift cleaning or the installation of pneumatic dust collection systems. In January 1984, OSHA published a proposed rule requiring employers to implement a housekeeping program aimed at minimizing fugitive grain dust in handling facilities. The program allowed for three compliance options: controlling dust at an action level of 1/8 inch over a 200-square-foot area, cleaning once per shift, or installing a pneumatic control system.
The proposed rule attracted significant feedback, including 5,000 comments and 11 days of hearings. Many participants questioned the need for a standard, asserting that the industry was managing dust issues effectively and that the proposed standard's benefits would be marginal. Some stakeholders argued for excluding milling and processing operations from the standard due to operational differences and lower dust production in smaller milling operations, which also had unique fire-retardant processing features. There were calls to exempt small "country elevators" from the standard, citing their lower incidence of fires and a disproportionate compliance burden.
While no participants argued against the necessity of housekeeping, many challenged specific requirements, particularly the mandate to "minimize" dust accumulations, which they felt implied costly pneumatic systems. Critics also raised concerns about the action level concept, arguing it could create a false sense of security and did not focus enough on areas near ignition sources.
On December 31, 1987, OSHA promulgated a final standard for grain-handling facilities, citing ongoing hazards despite industry safety initiatives since 1977. The agency noted that in 1985, there were 22 explosions resulting in fatalities and injuries, justifying regulatory action. The final standard incorporated integrated safety practices, employee training, and engineering controls, predicting a 75% reduction in grain fires and explosions and a 50% reduction in the severity of incidents.
OSHA identified four elements necessary for fires and explosions in grain facilities: air, confinement, fuel (grain dust), and ignition. It concluded that feasible controls exist only for ignition sources and dust. Expert Dr. C.W. Kauffman emphasized that while air is omnipresent and confinement can be managed at construction, addressing ignition sources and dust is critical. The standard mandates controls to mitigate ignition risks, including the removal of tramp metal and foreign objects from the grain stream at both the receiving pit and before processing. Regular preventive maintenance of machinery is required, and components such as the bucket elevator head and boot must be accessible for maintenance. Grain dryers must have automatic shutoff capabilities, and new dryers must either be located outside the elevator or equipped with explosion suppression systems. A monitoring system must be in place for bucket conveyors to shut down in case of malfunction. Hot work, such as welding, is prohibited unless under direct supervision or with a special permit, and jogging to free a choked leg is banned. Additionally, bearings in elevator legs must have vibration or heat sensors, and belts must maintain electrical resistance under 300 megohms.
The housekeeping provision requires employers to establish a written program to manage fugitive grain dust, specifically addressing accumulations on surfaces. Cleaning must occur when dust reaches 1/8 inch in designated priority areas: near bucket elevators, in grinding equipment rooms, and around grain dryers. Alternatively, employers can create a housekeeping program that offers equivalent protection. The final standard modified the initial proposal by limiting the 1/8-inch action level to priority areas, which provides a clearer compliance measure and addresses potential enforcement challenges present in prior standards.
OSHA identified challenges with measuring and enforcing a proposed 200-square-foot average for grain dust, prompting a focus on "priority areas" that have a high concentration of ignition sources. The agency set an action-level requirement for cleanup at 1/8 inch of accumulation in these areas to reduce grain dust effectively. The 1/8-inch standard applies only to grain elevators, excluding grain mills, as OSHA found that most explosions in mills originate from grinding equipment, where prevention can be achieved through maintenance and removal of foreign materials. Additionally, mills are cleaner due to FDA regulations, and the presence of various additives in feed reduces the combustibility of grain mixtures.
OSHA decided against exempting small elevators from the standard due to their significant incident rates, although it acknowledged that very small elevators might struggle with compliance costs. As a result, these smaller facilities are allowed to conduct daily visual inspections instead of implementing more expensive engineering controls. Estimated compliance costs are $5.7 million annually for mills and between $35.7 to $63.1 million for elevators, representing a small percentage of their net income without significantly affecting financial ratios.
The OSH Act mandates that OSHA ensure safe working conditions, allowing the establishment of mandatory safety standards deemed necessary for healthful employment environments.
The OSH Act imposes two key limitations on OSHA's authority to establish protective standards. First, under section 3(8), any standard must be "reasonably necessary or appropriate" for protecting employee health or safety, requiring OSHA to demonstrate a significant risk exists and that the proposed standard can effectively mitigate that risk. Second, section 6(b)(5) introduces a "feasibility" requirement, mandating that standards concerning toxic materials or harmful agents must ensure, as far as feasible, that employees do not suffer material health impairment from regular exposure during their working lives. Although section 3(8) lacks an explicit feasibility condition, the Supreme Court indicates that an economically or technologically unfeasible standard cannot be deemed "reasonably necessary."
Section 6(b)(5) imposes an affirmative obligation on the Secretary to issue feasible standards, thus preventing the Secretary from adopting a cost-benefit analysis that diverges from Congress's intent. Standards set under other provisions of the Act are still subject to cost-benefit analysis based on the "reasonably necessary" language of section 3(8).
Judicial review of OSHA's standards is governed by the "substantial evidence" standard as outlined in section 6(f). This standard requires a more rigorous examination of OSHA's actions compared to the "arbitrary and capricious" standard typically applied to administrative agencies. Substantial evidence is defined as relevant evidence that a reasonable person would find adequate to support a conclusion, and the review of factual findings does not allow for de novo evaluation; if reasonable inferences exist, the agency's decisions will be upheld.
OSHA's policy determinations require scrutiny even though they cannot be verified against the record. This scrutiny involves a two-pronged analysis, ensuring that the Secretary's actions align with the OSH Act's statutory language and purpose, and are reasonable based on the available record. When these determinations hinge on complex scientific data or speculative projections, the review is especially deferential.
The unions challenge OSHA's grain-handling facilities standard under section 6(b)(5) of the OSH Act, arguing that it fails to provide maximum feasible protection for grain workers, placing undue emphasis on industry compliance costs. They assert that the standard allows minimal protection, as it permits facilities to create their own housekeeping plans without imposing specific dust-control measures or limits on dust accumulation. The current 1/8-inch action level merely prompts clean-up operations rather than establishing a strict limit.
While the unions do not oppose the action-level concept, they advocate for a facility-wide implementation to better mitigate dust and reduce the risk of secondary explosions and ignition in critical areas. They also propose that OSHA should apply a facility-wide action level in grain mills or justify why this is not feasible.
A preliminary legal question arises regarding whether an OSHA safety standard addressing immediate physical dangers must comply with the feasibility mandate of section 6(b)(5). The parties reference the Supreme Court's decision in American Textile Mfrs. Inst. Inc. v. Donovan, which upheld OSHA’s cotton-dust standard aimed at preventing byssinosis. The D.C. Circuit supported this standard against industry challenges, rejecting the requirement for a cost-benefit analysis that had been applied in previous rulings. The Supreme Court affirmed that OSHA must not consider cost-benefit criteria when establishing toxic substance standards.
The court in *Building, Constr. Trades Dep't, AFL-CIO v. Brock* clarified that the "feasibility" standard under Sec. 6(b)(5) of the OSH Act does not necessitate a cost-benefit analysis when defining health and safety standards. The court established that "feasible" means something that is capable of being executed, thus requiring the Secretary to prioritize worker health above other factors, only limited by what is realistically achievable. The court determined that any standard set by the Secretary that deviates from this congressional intent would be inconsistent with Sec. 6(b)(5).
Furthermore, the court addressed whether Sec. 3(8)'s requirement for standards to be "reasonably necessary or appropriate" imposes cost-benefit constraints on OSHA's authority. It concluded that even if Sec. 3(8) implied such a requirement, it does not override the feasibility mandate of Sec. 6(b)(5), particularly regarding standards for toxic substances and harmful agents. The court emphasized that adopting cost-benefit criteria would undermine the protective intent of Sec. 6(b)(5).
The ruling left open whether Sec. 3(8) implies cost-benefit justifications for standards outside of Sec. 6(b)(5). OSHA argued that standards concerning grain dust do not fall under the definitions of "toxic substances" or "harmful physical agents" as articulated in Sec. 6(b)(5), asserting that the section is meant for substances that cause health issues over time or have non-obvious harmful effects, such as carcinogens or noise. The Secretary highlighted the necessity of ensuring no employee suffers material impairment to health due to regular exposure to hazards throughout their working life.
OSHA's interpretation of section 6(b)(5) is challenged on the grounds that it misrepresents the legislative intent by suggesting a distinction between hazards based on exposure duration. The text emphasizes that the phrase "even if such employee has regular exposure to the hazard for the period of his working life" should not be altered to imply conditionality, as this would narrow the protective scope intended by Congress. The absence of supporting legislative history for OSHA's restrictive reading raises questions about the rationale behind applying different standards to latent versus immediate hazards. Supreme Court dicta suggest that Congress acknowledged unique challenges in regulating health risks compared to safety risks, but the legislative history cited is scant. A key statement from Senator Dominick reflects an intent to address long-term exposure risks comprehensively without excluding immediate dangers. Moreover, Congress did not differentiate between health and safety standards in the OSH Act; rather, section 6(b)(5) provides a unified policy framework for all standards, implying an inclusive approach.
The text emphasizes that the protection of employee health and safety must consider the latest scientific data, feasibility of standards, and existing experiences under health and safety laws. It cites 29 U.S.C. Sec. 655(b)(5), noting that a clear distinction between health and safety standards is not consistently maintained. The Court highlighted that Congress did not intend for OSHA to weigh the costs of health and safety against their benefits differently. Instead, Congress expected employers to incur substantial costs to ensure a safe working environment, viewing such costs as part of doing business. The opinion further clarifies that when Congress expects a cost-benefit analysis, it explicitly states that requirement in the statute, which is not present in section 6(b)(5). Additionally, a case (Arkansas-Best Freight Sys. Inc. v. OSHRC) is mentioned where a court affirmed that only economic feasibility should be considered when evaluating standards. Finally, the text concludes that grain dust in grain-handling facilities is recognized as a "harmful physical agent" under section 6(b)(5), and whether OSHA adhered to the feasibility requirement in its regulations is the next point of inquiry.
OSHA is required to provide reasons for its actions, as mandated by 29 U.S.C. Sec. 655(e), and these reasons form the basis of the agency's decisions. When challenging an OSHA standard, the burden is on the challenger to demonstrate that their proposed measure is feasible and offers more than minimal health benefits. OSHA recognizes that an accumulation of 1/8 inch of grain dust is unsafe and that secondary explosions, primarily responsible for fatalities and injuries, can be mitigated by controlling dust levels. The agency has determined that primary explosions are most likely in certain ignition-prone areas, and thus the action level is confined to these priority areas.
OSHA previously proposed a broader 1/8-inch action level across any 200-square-foot area of a facility, but this was rejected for reasons of administrative efficiency and potential economic feasibility concerns. The final standard allows for enforcement when dust accumulates to 1/8 inch within designated priority areas, ensuring that employers must act to reduce dust levels promptly. This targeted approach is seen as more effective than the broader facility-wide proposal, which would have permitted higher dust levels in the most hazardous areas and delayed required clean-up actions. The final rule emphasizes stricter housekeeping requirements in these critical areas, enhancing worker safety.
OSHA acknowledges the administrative difficulties associated with enforcing a facility-wide action level based on dust accumulation over a limited area; however, it recognizes that extending a strict action level to the entire facility could mitigate these enforcement issues. By applying the action level across the entire facility, boundary disputes would be eliminated, and the risk of ignition would be reduced, thus enhancing worker safety. The unions have provided evidence supporting the feasibility of implementing a facility-wide 1/8-inch action level, asserting that compliance would require minimal technology, such as a push broom. OSHA's preliminary cost estimate for compliance at $24 million aligns with the estimated costs under the existing standard. This evidence necessitates OSHA to justify its decision not to adopt the unions' proposed restrictions, as there is insufficient evidence to support its refusal to implement a facility-wide action level for grain elevators. Consequently, the matter is remanded for further consideration, compelling OSHA to either adopt the proposed action level or provide a detailed explanation for its infeasibility. Regarding grain mills, OSHA has not imposed a similar action level, believing that primary explosions can be prevented through the control of ignition sources, which are primarily associated with grinding equipment and foreign materials. This approach relies on screens, housekeeping, training, and preventive maintenance, as mills are generally less vulnerable to explosions due to their operational differences compared to grain elevators.
Mills utilize various ingredients that, when combined with grain, create a less flammable substance compared to raw grain dust. They are subject to strict housekeeping and infestation regulations from other agencies, which are aimed at preventing contamination and dust accumulation, thereby reducing fire and explosion risks. The unions cite the case United Steelworkers of America v. Auchter to argue that OSHA incorrectly excluded grain mills from an action level similar to that for grain elevators, as both sectors face significant hazards. The court in that case determined that OSHA must justify why a standard cannot apply to other sectors with similar risks. However, the current situation is distinguishable because OSHA has provided coverage to mill workers that is intended to mitigate significant risks, unlike the total exclusion in the United Steelworkers case. Therefore, the unions must prove that their proposals would offer substantial safety benefits and be feasible, which they have not done. Consequently, OSHA's decision not to impose an action level for grain mills is upheld. Additionally, the industry challenges OSHA's cost-benefit analysis for grain-handling standards, but this argument is preempted by section 6(b)(5) of the OSH Act, which does not require a cost-benefit analysis, only a feasibility analysis.
The industry presents two main challenges regarding OSHA's final standard for grain dust: first, it contends that OSHA has not adequately demonstrated that its 1/8-inch action level will significantly reduce risks associated with grain elevator explosions; second, it argues that this action level is not economically feasible.
In addressing the first challenge, the industry highlights OSHA's acknowledgment that 1/8-inch is not a safe level for grain dust, questioning the effectiveness of setting such an action level. It references the Factory Mutual Study, indicating that even minimal dust accumulations (1/100 inch) can propagate flames and argues that OSHA should refrain from establishing any action level due to its impracticality. However, the ruling finds substantial evidence that while the 1/8-inch action level may not eliminate risks, it will significantly reduce them, as required under section 3(8) of the OSH Act. Various studies affirm that dust serves as fuel for fire and explosions, supporting the necessity for rigorous housekeeping efforts in grain elevator priority areas.
The ruling points out that the amount of layered dust correlates directly with explosion risks, emphasizing that deeper and more extensive dust accumulation increases the likelihood and severity of explosive incidents. Despite the industry's assertion that there is a maximum pressure limit for dust-related explosions, the ruling maintains that OSHA need not wait for absolute scientific certainty before acting to protect workers. Consequently, OSHA's choice of a 1/8-inch action level is justified as it is visible, measurable, and removable, providing a clear compliance standard.
The second challenge regarding economic feasibility is acknowledged but not detailed in this excerpt.
A standard is considered economically feasible if it does not jeopardize the long-term profitability and competitiveness of an industry. OSHA's assessment of compliance costs must demonstrate that these costs will not cause serious economic disruption across industries, allowing for agency discretion in estimating costs within a reasonable range. Specifically, for the grain-handling facilities standard, OSHA estimated compliance costs could lead to negative net income for approximately 183 grain elevators, which is less than one percent of all affected elevators, leading OSHA to deem the standard feasible.
The industry disputes OSHA's factual basis for this determination, particularly the labor costs associated with compliance, which are the highest expense for grain elevators. The industry claims OSHA significantly underestimated these costs by using a vacuuming and sweeping rate of 8,100 square feet per hour, arguing that a more accurate rate is between 1,000 and 1,500 square feet per hour.
OSHA's estimate for housekeeping labor costs was founded on two studies: a time-and-motion study that indicated a vacuuming rate of 9,400 to 11,000 square feet per hour for uncarpeted surfaces, and an ANSI study that found a rate of 6,480 square feet per hour for carpeted surfaces. OSHA concluded that combining vacuuming and sweeping could yield a cleaning rate of 9,720 square feet per hour, but adjusted this to an average of 8,100 square feet per hour to account for suboptimal conditions.
In contrast, the industry references findings from three studies supporting a cleaning rate of 1,500 square feet per hour, including the Arthur D. Little, Inc. report commissioned by OSHA, which observed cleaning rates of 1,000-1,500 square feet per hour based on empirical data from site visits to grain facilities.
ADL conducted a survey of major vacuum-cleaner manufacturers to evaluate their effectiveness in cleaning grain dust, identifying limitations in manual cleaning methods. A subsequent study by Booz, Allen and Hamilton, commissioned by OSHA, concluded that a cleaning rate of 1,500 square feet per hour for grain facilities was reasonable, relying on ADL's findings from 18 site visits and expert consultations. This figure was corroborated by the GEM Consultants and Midwest Research Institute study, which included a survey of 812 facilities and peer reviews from industry professionals. The text notes that when evidence is conflicting, OSHA's findings should be based on substantial evidence. In this case, the industry claims its studies are of higher quality than those used by OSHA, which relied on theoretical cleaning rates rather than practical observations. The document indicates a significant gap in the record regarding compliance costs, leading to a remand to the Secretary for reconsideration of the economic feasibility of OSHA's grain-handling standard. The Secretary must also assess the feasibility of applying the action-level component on a facility-wide basis. Enforcement of the 1/8-inch action level requirement is stayed pending this review. Most petitions have been denied, and further details about the grain-handling facilities standard and regulatory authority are provided.
The excerpt outlines the involvement of various unions and associations in opposing a standard related to workplace safety, specifically regarding grain dust hazards. A coalition of unions, including the Food Allied Service Trades Department, AFL-CIO, and the International Brotherhood of Teamsters, submitted a single petition. The Oil, Chemical, Atomic Workers International Union also filed an intervention petition, and the American Feed Industry Association, along with the Millers' National Federation, submitted separate intervention briefs. The National Grain and Feed Association represents grain elevator operators, comprising 1,300 members and 42 affiliated state and regional associations.
The Occupational Safety and Health Act (OSHA) mandates employers to maintain a safe working environment free from recognized hazards, as outlined in 29 U.S.C. Sec. 654(a)(1). The general industry housekeeping standard requires cleanliness and order in workplaces (29 C.F.R. Sec. 1910.22(a)(1)). Several administrative law judge (ALJ) decisions are cited, illustrating cases where the Secretary failed to prove the presence of hazardous dust accumulation, indicating that no duty exists to mitigate dust without evidence of risk.
The final standard defines "fugitive grain dust" as combustible dust particles from stock handling systems that can pass through a U.S. Standard 40 mesh sieve (425 microns or less, per 29 C.F.R. Sec. 1910.272(c)(2)). Additionally, the lower explosive limit (LEL) range for certain agricultural dusts is noted, referencing data from the U.S. Bureau of Mines. The operations of milling facilities are briefly compared to grain elevators, emphasizing differences in grain handling processes.
The NAS Report recommends several prioritized measures to mitigate the frequency and severity of explosions in grain processing facilities. Top priorities include ongoing research on dust concentrations, implementing a housekeeping program, establishing a preventive maintenance program, developing permit procedures for hot work (e.g., welding), and creating systems for monitoring belt slippage and misalignment, checking bearing temperature and vibration, and extracting foreign materials from grain, as well as grounding conveying and electrical equipment. These recommendations are intended for industry-wide adoption.
Executive Order No. 12,291 mandates that federal agencies adhere to substantive requirements, including conducting cost-benefit analyses, evaluating regulatory impacts, and considering the national economy before finalizing regulations. Although OSHA did not adopt most of OMB's recommendations, it did incorporate two action-level alternatives to promote public discussion through comments and hearings.
The document details the operational landscape of grain elevators, noting approximately 13,200 country elevators with a combined storage capacity of 7.1 billion bushels, primarily serving local farmers and employing about 70,800 full-time equivalents. In contrast, inland-terminal and export-terminal elevators are larger, with about 450 inland terminals holding 1.5 billion bushels and employing around 6,100 full-time equivalents, while export terminals, with a capacity of 370 million bushels, employ an average of 66.4 full-time and part-time workers.
USDA data from 1959 to 1982 indicates that incident rates for grain-dust explosions have been relatively stable over time, with an average of 10 to 11 explosions annually from 1958 to 1974.
In 1967, there were 17 explosions related to grain handling, with subsequent years showing similar trends: 16 in 1968, 15 in 1974, 22 in 1976, and 21 in 1977. National Fire Protection Association data indicates that grain fires averaged between 2,000 and 3,000 annually from 1958 to 1975, with spikes of 5,300 and 4,700 fires in 1968 and 1969, respectively. The grain-handling facilities standard regulates not only fire and explosion prevention but also addresses hazards such as suffocation from moving grain, exposure to toxic substances, and dangers posed by machinery. This standard is complemented by general industry standards.
The term "jogging" is defined as the repeated starting and stopping of motors to free a jammed bucket conveyor belt due to excess grain. The term "mills" encompasses various types of processing plants, including feed, flour, rice, and soybean operations. OSHA recommends multiple methods for controlling dust emissions, emphasizing a performance-oriented approach rather than mandating specific solutions. Effective methods include installing a well-designed pneumatic dust-collection system and using aspiration techniques to lower dust concentrations. Enclosing conveying systems and pressurizing work areas are also cited as effective, provided there is adequate access for maintenance. Another recommended method involves spraying edible oil into moving grain streams to control dust.
OSHA has the authority to issue different types of occupational safety standards, including national consensus standards and emergency temporary standards. A separate brief from OCAW argues for remanding the standard on the grounds that the Office of Management and Budget (OMB) allegedly undermined the Secretary’s role in its formulation, detailing the evolution of OSHA’s standard in the process.
Under Executive Order No. 12,291, the Office of Management and Budget (OMB) indicated it would not permit the Secretary to establish a grain dust standard that enforced strict, facility-wide limits on dust accumulation or required facilities outside grain elevators to adhere to specific limits. However, the record refutes this assertion, as OMB's recommendations were largely excluded from the final rule prior to OSHA’s proposed rule publication. The claim by the Oil, Chemical and Atomic Workers International Union (OCAW) that OMB obstructed judicial review through off-the-record coercion of OSHA is unsubstantiated; the final rule's validity relies on the official agency record, not an alleged "secret record" from OMB.
The court characterized cost-benefit analysis as a comprehensive assessment of the benefits and costs—both tangible and intangible—associated with a project. It distinguished between "monetized" cost-benefit analysis, which standardizes all costs and benefits into uniform units, and a broader "integrative" analysis that incorporates subjective evaluations of non-economic social values. The court referenced statements from Senators emphasizing the importance of workplace safety over economic concerns, highlighting that safety should not be compromised for profit. Quotations from Senators Eagleton, Dent, and Yarborough illustrated the potential human costs of unsafe work environments, reinforcing the notion that industrial safety is paramount and that financial considerations should not overshadow the health and well-being of workers.
Section 6(b)(5) establishes a feasibility mandate for health and safety standards under OSHA, suggesting that Congress intended these standards to be based on similar policy criteria. The language in Section 6(b)(5) does not imply that OSHA must provide greater protection against health hazards compared to safety hazards. Both sections aim to protect workers, with Section 6(b)(5) ensuring that no employee suffers material impairment of health and Section 2(b) emphasizing the provision of safe and healthful working conditions.
The terms "so far as possible" and "feasible" are interpreted as synonymous, aligning with judicial interpretations that "feasible" means "achievable." The text implies that prohibiting cost-benefit analysis for OSHA standards could be an extreme interpretation, which has been implicitly rejected in past rulings. There is an acknowledgment of a potential practical gap in regulatory stringency due to differing feasibility standards for regulation.
The final standard regarding grain dust management does not mandate employers to "minimize" dust but rather allows them to determine the best program to "reduce" dust accumulations, reflecting a shift towards operational flexibility. Concerns about vagueness and enforceability from unions are dismissed as falling within OSHA's discretion.
OSHA's inclusion of grinding equipment in grain elevators is a response to specific testimony, demonstrating the agency's flexibility in rulemaking. Additionally, OSHA established a 35-foot separation distance between ignition sources and dust accumulations, grounded in previous successful practices, despite union criticisms lacking supporting evidence. The agency's expertise is deemed appropriate for setting such boundaries. Lastly, there are concerns about the reliability of OSHA's assumptions regarding grain elevators maintaining dust levels below the 1/8-inch threshold, while Section 1910.272(j) mandates grates at receiving pits.
1910.272(m) mandates enhanced removal of ferrous materials from grain-processing equipment, including hammer mills and grinders. Ingredients used in feed production include inert fire retardants like limestone and bentonite, as well as non-flammable substances such as salt and various phosphates. The use of non-flammable liquids, including molasses and mineral oil, along with steam or water in the pelleting process, further minimizes explosion and fire risks. Feed mills are regulated by the FDA's Good Manufacturing Practice (GMP), which applies to both medicated and non-medicated feeds, requiring clean facilities and equipment to prevent contamination. These regulations are enforced through strict inspections.
The Supreme Court's Industrial Union case established that OSHA must demonstrate a significant health risk before regulating a toxic substance, a requirement that OSHA did not meet regarding benzene exposure levels. In contrast, there is a consensus that a 1/8-inch accumulation of grain dust poses a safety hazard, and OSHA requires immediate removal to reduce it to negligible levels. The United Steelworkers v. Marshall case supports OSHA's theory of a rational correlation between air-lead and blood-lead levels, despite OSHA's lack of a single correlation formula.
OSHA estimated that compliance costs would negatively impact no more than 77 to 129 elevators, as many were already adhering to aspects of the new standard; however, it cautiously assumed that financially struggling elevators were fully non-compliant. Approximately 16% of country elevators were identified as already experiencing negative financial conditions before the new standard took effect.
OSHA excluded certain facilities from its feasibility calculations due to their bankrupt status, indicating that compliance costs would not impact their financial situation. Empirical evidence from grain facilities shows that the previously estimated cleaning rate of 1,500 square feet per hour may be overly optimistic. A study involving 20 site visits to feedmill operations suggests that small feed facilities would need to hire an additional two-thirds of a worker to achieve adequate cleaning once per shift. With an average facility size of 4,000 square feet and an 8-hour shift, this results in a more realistic cleaning rate of approximately 750 square feet per hour. While the proposed grain dust standards would enhance worker safety, immediate implementation is contingent on establishing economic feasibility, as required by law. Thus, a stay is recommended until such feasibility is confirmed.
