5 issues OSHA will target over the remainder of 2013
Epstein Becker Green
Emergency Exits & Exit Routes – A couple of months ago, OSHA issued an enforcement memorandum directing inspectors to scrutinize whether employers were providing and maintaining adequate means of emergency exit; i.e., unlocked, unobstructed, and clearly marked exit doors and exit routes in compliance with 29 C.F.R. 1910.36.
Hazard Communication – OSHA revised its Hazard Communication Standard … and published the new Final Rule last year. Two significant changes contained in the revised standard require chemical manufacturers and users to implement new labeling elements and create and maintain Safety Data Sheets (SDSs) that follow a new standardized format.
LO/TO & Machine Guarding – OSHA’s regulations addressing amputation hazards; i.e., Lockout/Tagout and Machine Guarding, both rank high on the list of most frequently cited OSHA standards every year. As a result, OSHA currently has in place a special emphasis program focusing inspection resources on these hazards. Specifically, OSHA is in the midst of an Amputations National Emphasis Program, which targets compliance with the LO/TO and machine guarding standards.
Fall Protection – Just like with amputation hazards, fall hazards continue to rank among the leading causes of serious injuries and fatalities in both general industry and construction, and OSHA’s fall protection standards continue to rank among the most frequently cited standards year after year.
Compliance with the Grain Standard – While local emphasis programs continue to set a pretty high target for the number of grain elevator inspections annually, many regions have held back on inspections during the spring and summer, and plan to catch up on the annual target during the fall and winter (i.e., harvest season). Since employees are more often engaged in those work activities covered by the Grain LEPs during harvest season, such as entering bins, performing preventive maintenance, loading railcars, etc., the frequency of inspections at grain handling facilities will be particularly high for the rest of this year.
BNSF plans $175 million capital program to improve and expand Kansas rail capacity
BNSF Railway Company plans to invest an estimated $175 million on maintenance and rail capacity expansion projects in Kansas this year.
BNSF's 2013 capacity expansion projects in Kansas include completing construction of BNSF's Logistics Park Kansas City Intermodal facility in Edgerton; construction of a new 10,000-ft. siding and extension of industry track to 3,000 feet near Spring Hill, Kansas; improvements to BNSF's Topeka shops; and significant signal upgrades for federally mandated positive train control (PTC).
BNSF will continue its robust maintenance program, which will include about 2,500 miles of track surfacing and undercutting work, the replacement of nearly 100 miles of rail and about 375,000 railroad ties. Read more.
ADM and CVA form joint venture to build grain elevator near Randolph, Neb.
ADM and Central Valley Ag Cooperative (CVA) have formed a joint venture to construct a 5-million-bushel shuttle loader grain elevator near Randolph, Neb. The joint venture, named 81-20 Grain Terminal, LLC, will originate corn and soybeans from regional farmers, primarily for transportation by 110-car BNSF shuttle trains to export markets via the U.S. Gulf Coast, Pacific Northwest and Southwest.
Owned by ADM and CVA equally, the new facility will feature two receiving pits and one rail receiving pit—each capable of dumping 20,000 bushels of grain per hour. It is expected to begin operation by fall 2014. Read more.
OSHA Agenda Addresses I2P2, Silica, Combustible-Dust Standards Society for Human Resource Management
The U.S. Occupational Safety and Health Administration (OSHA) intends to issue nine final and nine proposed rules in the next six to 12 months on matters ranging from record-keeping and confined spaces in construction to silica and beryllium exposures, according to the Department of Labor’s spring 2013 regulatory agenda, released July 3, 2013. The remaining eight items on OSHA’s agenda, which are at the prerule stage of development, include a proposed combustible-dust standard and reviews of the bloodborne pathogens and chemical-exposure-limits standards.
By December 2013 the agency plans to issue rules for handling whistle-blower complaints and for providing protection to employees who report allegations of fraud against shareholders; and employees working for commercial motor carriers, railroad carriers and public-transportation agencies. By April 2014, OSHA will issue final whistle-blower rules under the Consumer Financial Protection Act, the Seaman’s Protection Act, the PPACA and the FDA Food Safety Modernization Act. Read more.
Hours-of-service Exemption Regulation The Kansas Corporation Commission has now published a final regulation (K.A.R. 82-4-3a) which expands the previous hours-of-service exemptions for motor carriers transporting agricultural commodities and farm supplies, by adopting the most recent FMCSA regulation following passage of the federal Moving Ahead for Progress in the 21st Century Act (MAP-21).
KGFA staff testified in support of the regulation at the public hearing and submitted a written comment in support of the regulation. Staff recommended, and the Commission implemented, a few minor changes to tighten the language and broaden the definition of “agricultural commodity” and “farm supplies” as used in the regulation.
The amendment expands the previous hours-of-service exemption in place for motor carriers transporting agricultural commodities and farm supplies during the planting and harvesting seasons, as follows:
(A) Drivers transporting agricultural commodities from the source of the agricultural commodities to a location within a 150 air-mile radius from the source;
(B) Drivers transporting farm supplies for agricultural purposes from a wholesale or retail distribution point of the farm supplies to a farm or other location where the farm supplies are intended to be used within a 150 air-mile radius from the distribution point; or
(C) Drivers transporting farm supplies for agricultural purposes from a wholesale distribution point of the farm supplies to a retail distribution point of the farm supplies within a 150 air-mile radius from the wholesale distribution point.
KCC holds public hearing on new Hours of Service Regulations
On Thursday, July 11th, the Kansas Corporation Commission held a public hearing to consider adoption of proposed amendments to Kansas Administrative Regulation (K.A.R.) 82-4-3a, which expands the previous hours-of-service exemptions for motor carriers transporting agricultural commodities and farm supplies, by adopting the most recent FMCSA regulation following passage of the federal Moving Ahead for Progress in the 21st Century Act (MAP-21).
KGFA staff testified in support of the regulation at the public hearing and submitted a written comment in support of the proposed regulation. Staff recommended a few minor changes to tighten the language and broaden the definition of “agricultural commodity” and “farm supplies” as used in the regulation. Corporation Commission staff agreed with our recommendations and plans to work with us to make these small, but necessary, changes.
The regulation will then be reviewed once again by the Department of Administration and the Office of the Attorney General. This process should not take more than a few weeks, and the new regulations will become effective once they are published in the Kansas Register. KGFA will notify members as soon as the final regulation is published.
Attached is a copy of the proposed changes to K.A.R. 82-4-3a. The hours-of-service exemption for motor carriers transporting agricultural commodities begins on page four. The proposed amendment expands the previous hours-of-service exemption in place for motor carriers transporting agricultural commodities and farm supplies during the planting and harvesting seasons, as follows:
1. Drivers transporting agricultural commodities from the source of the agricultural commodities to a location within a 150 air-mile radius from the source;
2. Drivers transporting farm supplies for agricultural purposes from a wholesale or retail distribution point of the farm supplies to a farm or other location where the farm supplies are intended to be used within a 150 air-mile radius from the distribution point; or
3. Drivers transporting farm supplies for agricultural purposes from a wholesale distribution point of the farm supplies to a retail distribution point of the farm supplies within a 150 air-mile radius from the wholesale distribution point.
OSHA To Target Exits and Exit Routes By Eric J. Conn, Head of the OSHA Group at Epstein Becker & Green, P.C.
Last month, OSHA issued an enforcement memorandum directing inspectors to scrutinize whether employers provide and maintain adequate means of exit; i.e., unlocked, unobstructed, and clearly marked exit doors and exit routes and doors that comply with 29 C.F.R. 1910 Subpart E – Means of Egress (specifically, the various requirements of 1910.36). The memo was issued in response to a deadly explosion and ammonia release at a poultry processing plant in China on June 4, 2013, in which at least 120 employees lost their lives, many because they were unable to exit the plant due to blocked or locked exits.
In the enforcement memorandum, OSHA announced that: “During inspections of all workplaces [inspectors] should be mindful of whether the employer has provided and maintained adequate means of egress from work areas; e.g., adequate number of exit routes are provided, exit routes are free and obstructed, and exit doors are not locked.” This is consistent with the criteria OSHA identified in its Emergency Exit Routes Fact Sheet.
Here are the basic requirements for complying 1910.36 set forth in OSHA’s regulations and the Fact Sheet:
1. Employers must determine how many exits routes are required in its building. As a general rule, workplaces must have a minimum of two exits, and possibly more based on the number of employees, the size of the building, and the arrangement of the workplace. One exit route may be allowed if the size of the building, its occupancy, or arrangement allows all employees to evacuate safely.
2. Exit routes must be maintained unobstructed, and the exit doors must remain unlocked from the inside. Specifically, exit routes must be free of stored materials, equipment, and especially explosive or highly flammable furnishings. Exits doors must be conspicuous, visible, free of decoration, and unlocked from the inside.
3. Exit routes and doors must be properly labeled and maintained. Proper labels include signs that read “EXIT” or “TO EXIT” in plain legible letters, and maintained with adequate lighting. Doors or passages along the exit route that are not exits and do not lead to exits must be marked as “NOT AN EXIT” or labeled such that their non-exit purpose is obvious (e.g., store room, office, etc.).
During the 2013 legislative session, changes were made to the Kansas workers compensation law under SB 187. These changes reduce the amount of time an employee has to report a work-related injury to 20 days following the date of the accident. This is a decrease from the previous 30 days allowed. Also, if the employee no longer works for the employer, the employee now has 10 days from the last date of employment to report a work-related injury to the former employer.
These changes became effective on April 25, 2013. Employers are required to post these new requirements, and the Kansas Department of Labor notice form can be found here. Additionally, a summary of the changes can be found here.
MKC and CHS to build grain shuttle loader in Canton
The boards of Mid-Kansas Cooperative (MKC) and CHS Inc. have approved an agreement to form a limited liability company (LLC) to build and operate a high-speed shuttle loading facility in Canton, Kansas.
Construction on property currently owned by MKC is expected to be completed within the year. Located on the Union Pacific rail line, the grain shuttle will load 110-car trains bound for export facilities in the Pacific Northwest and the Gulf Coast and Mexico. Upon completion, on-site storage will be in excess of 3 million bushels.
The newly formed LLC will become a member of Team Marketing Alliance (TMA) which will handle grain marketing services for the Canton grain shuttle facility. Read more.
ADM contributes $325,000 to KSU hard white wheat program
KGFA member Archer Daniels Midland Company (ADM) has announced a $325,000 investment in the Kansas Wheat Commission Research Foundation (KWCRF) that will be used to strengthen the hard white wheat variety development in the Kansas State University wheat breeding program at Hays.
The investment will allow wheat breeder Guorong Zhang and his colleagues to use molecular marker and doubled haploid technologies to develop new white wheat varieties suited for the baking industry, plus offer farmers improved yield and agronomic traits. White wheat is well-suited for bread, tortillas, noodles and many other baking applications.
The funds will be paid to K-State through the KWCRF over five years. This is the first research project funded by the KWCRF since it was established in 2011. Read more.
New Wheat Standard rule published in Federal Register
On May 13, the Federal Grain Inspection Service published a final rule for US Wheat Standards. The final rule addresses: 1) The definition of contrasting classes in white wheat and 2) A revision for the shrunken and broken kernels in U.S. No. 1 and U.S. No 2 wheat grades.
Hard Red Winter and Hard Red Spring were previously categorized as contrasting classes. Under the new rule Hard Red Winter and Hard Red spring are classified only as wheat of other classes. In GIPSA’s proposed rule the shrunken and broken grade limits were only restricted for U.S. No. 1 and U.S. No. 2 grades.
GIPSA received comments from several organizations raising concerns such as Oklahoma’s competitive disadvantage in meeting the new standards to wheat millers’ concerned that the changes did not restrict grades enough. GIPSA will not make the shrunken and broken grade changes but may propose in future rulemaking. The final rule will be effective on May 1, 2014 to coincide with the 2014 wheat harvest.
Earlier this month, the OSHA National Headquarters released a memorandum to its regional directors containing OSHA’s latest policy directive regarding the operation of sweep augers inside grain storage bins during employee entry. The memorandum clarifies OSHA’s policy on grain bin sweep augers as regulated by 29 CFR 1910.272(g)(1)(ii).
The memorandum is now official national OSHA policy for all regions. Please carefully read the memorandum, including the 10 enforcement items at the end of the memorandum. The new policy allows employees to enter a grain bin with an operating sweep auger as long as specific criteria are met, and the employer can establish that it protects its workers from the dangers of a sweep auger through the use of specific engineering controls and work practices controls so that a danger is not present to employees.
KGFA strongly advises each member to review their bin entry standard operating procedures and amend as necessary to incorporate the 10 OSHA principles in the new OSHA policy or ensure strict compliance those principles.
Status Update on Federal Hours of Service (HOS) Exemption Regulations
Last October, two new statutory exemptions to the federal hours-of-service (HOS) rules became effective under Sections 323101 and 32934 of the moving ahead for progress in the 21st century act (MAP-21). Section 32101 provided an exemption from HOS regulations for certain carriers transporting agricultural commodities and farm supplies. Section 32934 provided a statutory exemption from most federal regulations for the operation of covered farm vehicles by farm and ranch operators. Note: a previous 2-year exemption from federal HOS regulations for carriers transporting anhydrous ammonia will not be renewed, as it is now substantively included under Section 32101.
Association staff notified the Kansas Corporation Commission (KCC) at the time and petitioned the KCC to amend its regulations to reflect the new HOS exemptions under MAP-21. On Thursday, March 14, 2013, the FMCSA, under the federal department of transportation, published a final rule in the Federal Register amending the federal regulations to reflect the new, broader, HOS exemptions under MAP-21. Adoption of this final rule allows states to amend their own regulations to reflect the federal HOS exemptions under MAP-21.
Association staff was recently notified that the Kansas Attorney General's office has approved all but two of the KCC regulations concerning the MAP-21 HOS exemptions, and that this stage in the process is nearing completion. Once all of the regulations are approved, the regulations will be published in the Kansas Register for a 60-day public comment period and a public hearing.
Please note that all currently existing KCC regulations concerning HOS exemptions remain in effect until the new KCC regulations are passed.
How to Comply with OSHA's Sweep Auger Regulations Feed & Grain Magazine
The Occupational Safety & Health Administration’s (OSHA) roller coaster ride of enforcement policy in connection to sweep augers and bin entry has taken another major turn.
After a recent string of confusing interpretation letters issued by OSHA effectively banned the practice of employees working with sweep augers inside of grain bins without nullifying the equipment’s functionality by requiring the auger to be guarded on all sides, a ground-breaking settlement of an OSHA case against an Illinois grain company appears to have reversed that policy. The settlement, which became a final order of the OSHA Review Commission in mid-January, renews the industry’s right to work inside grain bins with energized sweep augers, and provides clarity to the conditions that OSHA deems acceptable for that work.
The recent legal landscape about the use of sweep augers and bin entry has left the ag industry perplexed. Much of the confusion dates back to the original implementation of the Grain Handling Standard (29 C.F.R. 1910.272). The final Grain Standard, which was published in 1987, did not include any provision to address the use of sweep augers or the conditions in which an employee may work inside a grain bin with an energized sweep auger. Click here to read the full article.
Breaking News: Sweeping changes to OSHA’s sweep auger enforcement OSHA Law Update, Epstein Becker Green
The roller coaster ride that has been OSHA’s enforcement policy in connection with work inside grain bins with energized sweep augers has taken another major turn. After decades of employees working inside grain bins with sweep augers, a string of recent, somewhat confusing, Interpretation Letters issued by OSHA effectively banned the practice.
Now, a groundbreaking settlement of an OSHA case against an Illinois grain company became a Final Order of the OSHA Review Commission in January, and that settlement has renewed the industry’s right to work inside grain bins with energized sweep augers, and provided real clarity as to the conditions that OSHA considers to be acceptable for that work. Read more.
KGFA thanks Chrysler for Super Bowl commercial
KGFA, along with other several national and state ag groups, signed on to a letter from the Animal Ag Alliance thanking Chrysler for their “And God Made a Farmer” commercial during the Super Bowl.
KGFA urges our members to go to www.ramtrucks.com/en/keepplowing to watch the commercial and help the National FFA Foundation achieve its goal of a $1 million contribution from Chrysler to its “Feeding the World – Starting at Home” program.