And Safety For All: ensuring your facility has a game plan for when inspectors do not play by the rules By Randy Stookey, KGFA General Counsel
Recently, an association member presented an interesting - if not alarming - question to association staff. The member described a situation where an inspector with a federal agency failed to follow standard operating safety procedures regarding bin entry. Even after the inspector was notified of the safety rule, and was asked to comply, the facility could not gain compliance with the safety standard.
What is a facility to do in this situation?
As an industry, we are acutely aware of our legal, regulatory, and moral duty to ensure the safety of all persons on-site, at all times. Clearly, we understand that our safety standards and procedures apply to our employees, on-site contract workers, and visitors. We are made especially aware of this standard by the heightened scrutiny placed on our industry under OSHA’s Local Emphasis Program.
However, unique circumstances exist during interactions when official state and federal inspection personnel are on-site. The normal flow of daily operations is interrupted, and Operations Managers and Safety Officers find themselves removed from their normal duties to locate and provide records, answer questions, and accompany inspectors around the facility. Through all of this, we can become preoccupied and not fully recognize our duty to ensure the safety of the inspection staff, or assume that they will automatically conduct themselves in a professional and safe manner.
So what happens in the rare circumstance when inspection personnel unnecessarily expose themselves to unsafe or hazardous situations in violation of our (and OSHA) safety standards? Are our hands tied so that the inspectors simply have free reign of our facilities?
In finding answers to these difficult – but vitally important – questions, I spoke with the Acting Director of DOL/OSHA’s Regional Office in Wichita, and received the following guidance on the proper procedure to handle such situations:
Federal agencies are required to promulgate safety standard operating procedures (SOP) for their employees. (29 CFR, Part 1960.1(g)).
When a federal inspector is on-site at a facility, that inspector is required to follow the agency’s inspection SOPs and safety procedures.
Federal inspectors are also required to comply with all OSHA industry workplace safety standards.
If an inspector’s activities are not consistent with OSHA workplace safety standards, then the facility may expose themselves to both private liability and regulatory enforcement action for any injuries caused by accidents related to that noncompliant, unsafe behavior.
In order to protect the facility from liability and regulatory enforcement actions, it is advised that the facility’s safety officer initially notify inspection personnel of its safety SOPs prior to the inspection, make a record of that notice, and accompany the inspection personnel at all times while on-site.
If the safety officer observes any unsafe activity by the inspection personnel, the safety officer should immediately notify the inspector of the safety SOP requirement, explain why the action is unsafe and in violation of the safety SOP, and provide the inspector with an alternative action in compliance with the safety SOP.
If the inspection personnel refuses to comply with the safety SOP and continues the unsafe activity, the safety officer should request a brief delay in the inspection in order to consult with the inspection personnel’s supervisor.
The safety officer, or operations officer, should then immediately contact the inspection personnel’s supervisor to find a resolution to the situation, being prepared to provide the inspection personnel’s supervisor with the following information: the site location, the name of the inspector, the pertinent facts of the safety violation to include the safety standard that was/or would have been violated, the request that was made to the inspector to alter their activity, and the inspector’s response to that request.
If the matter is resolved through contact with the area supervisor, then the safety officer should make an internal memorandum of record detailing:
the site location and a general description of the site
the name of the inspector(s)
the date of the incident (or incidents if this has happened on prior occasions)
a record of the safety briefing, if any, conducted prior to the inspection
the pertinent facts of the safety violation to include the standard that was/or would have been violated
the clear directive/request that was made to the inspector to stop the unsafe activity
the inspector’s specific response to that directive
the fact that the inspector was provided with an alternative action to complete the inspection in a manner that was consistent with safety standards
the inspection personnel’s response to the alternative action request
the name and contact information of the person that the safety officer or operations officer contacted in the inspector’s chain of command following the inspector’s refusal to follow the safety SOP and directive, and
any other information deemed relevant to the situation.
Note: This is a vitally important step in protecting the elevator from future civil suit or regulatory enforcement actions.
If the matter is not resolved through contacting the inspection personnel’s supervisor, then the safety officer should contact their area OSHA office or KGFA for further assistance.
When the safety officer contacts the area OSHA office or KGFA, he/she should be prepared to provide all of the information above, along with a brief explanation of the response received from the inspector’s supervisor, and why that response did not resolve the situation.
Remember that the more facts you can provide to OSHA the better OSHA will be equipped to assist the elevator in resolving the noncompliance.
I hope you have found this information helpful. Remember, most inspectors intend to do their job in a professional and safe manner. The best approach to resolving any issue with inspection personnel is to address the issue on the lowest (and most direct) level as possible. As always, however, your association staff is here to assist you whenever possible.
“OSHA Visit” Webinar materials available
Those who were unable to view the Epstein Becker Green webinar on "Preparing For an OSHA Visit at Your Grain Facility" on February 11, 2014 may view the event and other resources using these links.
NGFA releases sweep auger guide for industry Asmark Institute
The National Grain & Feed Association (NGFA) has completed a sweep auger guide designed to assist grain handlers in developing and implementing a sweep auger operations safety policy. Over the past several years, there has been uncertainty within the industry regarding what type of sweep auger equipment can be used, and the types of procedures that OSHA may find acceptable. NGFA’s sweep auger guide is consistent with the OSHA sweep auger memo that was released in May of 2013. NGFA’s Safety, Health, Environmental and Quality Committee recommended the new guide be developed to assist the industry in complying with the OSHA memo. Contact your association staff for a copy of the new guide.
IRS issues final rule on employer health coverage responsibility under ACA Asmark Institute
On February 12, 2014, the Internal Revenue Service (IRS) recently issued final regulations with guidance on large employers' shared responsibility for employee health insurance coverage under Section 4980H of the Internal Revenue Code. Under the final regulations, the employer mandate will apply to employers with 100 or more full-time employees beginning January 1, 2015. The final rules will apply to midsize businesses with 50 to 99 full-time equivalent employees beginning January 1, 2016. Companies that have fewer than 50 employees are exempt from providing coverage or filling out any forms in any year.
Senate passes 2014 Farm Bill
February 6, 2014
On Tuesday, the U.S. Senate passed a new comprehensive farm bill that reauthorizes agriculture subsidies, rural conservation, federal nutrition assistance and energy related provisions over the next five years. The farm bill passed with a final vote of (68-32) and with the bill now passed the House & Senate, the president is expected to sign the legislation into law as soon as it lands on his desk.
Click here for a link to the 2014 Farm Bill that includes a 1-page summary document.
New overweight sealed container rules
February 6, 2014
Following a meeting last month between KGFA staff, Kansas Motor Carriers Association staff, the Kansas Highway Patrol, and the Kansas Department of Transportation (KDOT), the following changes have been made to KDOT’s Sealed Ocean Container Rules:
Seals must now meet “U.S. Customs & Border Patrol Specifications,” and
New Rule No. 16 - An “oversize load” sign is no longer required for trucks hauling overweight sealed containers.
Click here for the complete updated rules for sealed ocean containers.
Kansas Supreme Court rules on Farmway Co-op, Inc. vs. Lincoln Center
December 20, 2013
Today, the Kansas Supreme Court released its opinion on the nuisance action matter between Farmway Co-op, Inc. and the City of Lincoln Center.
In reviewing the Appellate Court’s holding that Lincoln Center’s nuisance ordinance was unconstitutionally vague, the Supreme Court affirmed in part, reversed in part, and remanded to the District Court for further findings of fact.
The Court found as follows:
As written, Lincoln Center's noise ordinance is unconstitutionally vague as applied to the defendants, Farmway Co-Op, Inc. and Farmway Storage #1, LLC, because it lacks sufficiently objective standards to prevent its arbitrary enforcement.
Lincoln Center's nuisance ordinance is not unconstitutionally vague as applied to the defendants, Farmway Co-Op, Inc. and Farmway Storage #1, LLC. The ordinance conveyed definite warning and fair notice to the defendants as to the prohibited conduct and sufficiently protected them against arbitrary and discriminatory enforcement.
Judgment of the Court of Appeals affirming the district court is affirmed in part and reversed in part. Judgment of the district court is affirmed in part, reversed in part, and remanded.
Find the full opinion clicking here, and going to Case No. 105962, under Supreme Court Decisions, December 20, 2013.
AFIA: USDA announces plans to re-propose Food Safety Modernization Act rules December 19, 2013
Today, the U.S. Food and Drug Administration announced plans to re-propose the Food Safety Modernization Act rules on produce safety and preventive controls for human food (which includes feed). FDA plans to propose revised rule language and seek comment on it, allowing the public the opportunity to provide input on FDA’s new thinking.
There may be other revisions to the proposed rules; the scope of the revised proposals, on which FDA will seek further comment, will be determined after FDA completes the initial review of written comments. FDA believes that this additional step to seek further input on revised sections of the proposed rules that need significant adjustment is critical to fulfilling their continuing commitment to getting these rules correctly written for implementation.
USDA’s plan is to publish revised proposed rule language by early summer 2014. Read more on this announcement here.
Agriculture spies target seed technology, feds say USA TODAY December 12, 2013
A corporate agriculture espionage case announced Thursday by federal prosecutors offered a glimpse into how at least seven Chinese men allegedly traveled across the Midwest to steal millions of dollars in seed technology.
The investigation revealed how the men used counter-surveillance techniques to shake FBI tails, but still had the seeds confiscated by law enforcement authorities as they tried to leave the country.
Mo Hailong, also known as Robert Mo, is accused of stealing trade secrets worth at least $30 million to $40 million, said Nicholas Klinefeldt, U.S. Attorney for the Southern District of Iowa. It's the first corporate agriculture espionage case of its kind in Iowa, officials said.
"The point is to call people out on this type of activity," Klinefeldt said. "So that people know about it, and so companies can take the right precautions to prevent it from happening again."
Mo, the only person charged or arrested, used an alias to tour DuPont Pioneer's headquarters in Johnston, Iowa, and Monsanto's research facility in Ankeny. He also attend a state dinner in which Iowa Gov. Terry Branstad welcomed Xi Jinping, the then-future president of China, back to the Iowa. Mo and others often met at farm in Illinois bought by Kings Nower Seed, a Chinese seed company for which they were spying, court documents show.
The charge against Mo comes in a state that has pushed to increase trade with China. In October, trade agreements worth an estimated $1 billion were signed by companies from Iowa and China's Hebei Province. Read more.
Webinar recording: “Railcar Fall Protection: What OSHA Requires of Elevator Operators” December 11, 2013
On Tuesday, December 3, 2013, in conjunction with Grain Journal, Eric J. Conn, head of the national OSHA Practice Group at Epstein Becker & Green, delivered a webinar focused on the OSHA enforcement landscape related to work on top of rolling stock - specifically railcars - at grain elevator facilities. The webinar, including a Q&A session, was recorded, and the Grain Journal has made the recording available online. The recording includes an audio broadcast with a video of the accompanying PowerPoint presentation.
The webinar covered:
The history of OSHA enforcement as it relates to rolling stock fall protection, from the 1996 “Miles Memo” to the most recent court decisions upholding the Miles Memo;
OSHA’s active enforcement agenda that includes a targeting of railcar fall protection issues in the grain industry;
OSHA’s ongoing Walking & Working Surfaces rulemaking activity, which may introduce new railcar fall protection requirements; and
Recommendations for how best to avoid OSHA citations while performing work on railcars.
Government dairy subsidies that affect the cost of a gallon of milk are set to expire at the end of the year as farm-state lawmakers said Tuesday that they do not expect to have a new farm bill — or an extension of current law — before Jan 1.
Expiration of the current dairy subsidies triggers 1930s and 1940s law, outdated statutes that could upend the commercial dairy market and eventually cause the price of milk to rise. But Senate Agriculture Chairwoman Debbie Stabenow, a Democrat, said she has assurances from the Agriculture Department that the price spikes would not happen before the end of January, and she and House Agriculture Chairman Frank Lucas, a Republican, say they hope to have a final farm bill deal by then.
The House and Senate have passed separate versions of the five-year, roughly $500 billion bill, but with widespread differences over crop subsidies and how much to cut food stamps.
"We will be ready to vote in January," Stabenow said after a meeting with Lucas Tuesday.
House Speaker John Boehner said last week that he favors an extension, and House leaders have reserved space on their agenda this week for extending the current law.
But Senate Majority Leader Harry Reid balked at that plan. "Let them vote on it. We're not going to do it," he said Tuesday.
Stabenow said a short-term extension could allow subsidies called direct payments to continue. Those subsidies are paid to farmers whether they plant or not and have come under political fire from conservatives and others who have lobbied for less spending on farm programs. Both the House and Senate farm bills would eliminate the subsidies and create new ones. Read more.