The Unspoken Arguments: Liability and Retroactivity

So why is the housekeeping provision in 61B so vague? Two factors other than the limitations of science and the diversity of facilities are at play. One is specific to this issue, the other indicative of a larger force affecting the development of private safety standards. There is an unspoken belief that good housekeeping simply is not the answer. To some, it is a matter of practicality. It would require excessive effort, the argument goes, to keep an elevator clean enough to prevent explosions. "There is no such thing as a clean elevator," quipped one trade association representative. Perhaps the strongest explanation is that a specific housekeeping provision could be legal dynamite. Industry has learned that voluntary standards can and will be used against you in a court of law. Most explosions lead to litigation. According to a retired Cargill executive who testifies in such lawsuits, 61B and a host of related standards are raised in almost every case. The stakes can be very high. The two largest explosions in 1977 resulted in settlements of approximately $25 million each, and a jury recently applied the bane of the tort law—punitive damages—for the first time in a grain elevator case.^[27] The vaguer 61B is on housekeeping, the less powerful a weapon it would be after an explosion.^[28] Some of the vagueness, then, is simply an attempt to make the standard liability-proof. The ill-fated OSHA citations that relied on 61B are testimony to the effectiveness of this strategy.

Success, in this context, breeds more generalities. Substituting what Agricultural Dusts committee members refer to as "motherhood statements" for specific provisions is an increasing trend with 61B. Space heaters shall be located in "suitable places." Fire extinguishers shall be located in "strategic" places. A proposal that all bearings be properly maintained in accordance with the manufacturer's specifications was rejected by the committee in 1985 in favor of a requirement that "all bearings shall be properly maintained."^[29] ("Let's see what a lawyer can do with that one!" mused a committee member at the July 1985 meeting.) Of course, the ability of lawyers to "do something" with the standard is probably equal to (or greater than) the standard's usefulness to its intended audience, grain elevator operators. Without guidance concerning the specifics of "proper maintenance," the lawyers will be as lost as anyone trying to glean any substance from the standard.

The extent to which 61B should contain such generalities appears to be the most significant issue facing the Agricultural Dusts committee. Some think that the committee has gone too far already. The president of one of the only two insurance companies presently underwriting grain elevators—major companies such as Cargill are self-insured—abhors the generality. He considers 61B so vague as to provide no real assistance in evaluating elevator safety. He does not even keep a current copy of the standard in his office. The technical director of the National Grain and Feed Association, on the other hand, considers such generalities the silver lining to an otherwise objectionable standard.

The generality problem indicates a more significant dilemma. The committee is trying to achieve two largely incompatible objectives: having a meaningful standard that can affect safety and provide helpful guidance to elevator operators without providing ammunition that will be used against you whenever an explosion occurs. Nowhere are the dimensions of this problem more accentuated than in respect to retroactivity.

By its own terms, 61B applies only to new facilities. This makes the most sense for design requirements. Compliance costs for many requirements are low in the design stage but very high after construction. Elevators used to be built with combustible materials, for example, and little consideration was given to minimizing ledges and horizontal surfaces or designing conveyors in a manner that would facilitate cleaning with portable vacuum cleaners. These things can easily be remedied in the design process. Correcting them retroactively would practically involve building a new facility.

In reality, 61B can, has, and will be applied to situations other than brand-new elevators. When issuing citations, OSHA often refers to 61B without regard for the date the facility was constructed. Plaintiff's attorneys are similarly inclined and have met with greater success. The retroactivity clause invites this attitude. NFPA 61B attempts to be unusually lenient in this regard. Unlike most building codes, it does not even require compliance in the case of major expansion or renovation—the vast majority of "new" construction. Moreover, the 1980 version also exempted from retroactive coverage a host of operational activities—such as hot-work procedures and housekeeping—that can be carried out without regard to the age or design of the facility.

The opposing viewpoints about retroactivity reflect deep-seated differences concerning the role and nature of private standards. Some of those favoring the broadest possible exemption from retroactive application "really do not want a standard at all," according to an Agricultural Dusts committee member at the July 1985 meeting.^[30] This group is not insignificant. The National Grain and Feed Association, the largest trade association in the field, is unwilling to refer to 61B as a national consensus standard and refuses to participate on any of NFPA's agricultural dust committees.

The implications of this reticence are not lost on the Agricultural Dusts committee. Organized opposition can prevent or at least postpone proposals from being adopted in the NFPA system. Should this private standard become unpalatable enough to the NFPA, or if others in the industry actively opposed it, 61B might fall of its own weight. As one committee member said at the July 1985 meeting, "It behooves us to try and give some relief to those being sued." Nevertheless, most committee members realize that the only real "protection" against retroactive application is to abolish the standard. They understand that others will do as they please in interpreting the retroactive effect of 61B, so it is futile to attempt to prevent this from happening by tinkering with the retroactivity clause. These members also see the danger in exempting too many requirements from retroactive effect. "If this [standard] is too unattractive to the states," warned another committee member at the same meeting, "they might adopt their own requirements." Several proposals to strengthen the tone of the retroactivity clause were rejected in July 1985 primarily because they seemed pointless to the committee.

To the chagrin of those proposing the stronger exemption, the committee adopted a proposal by the representative from Continental Grain

to narrow the scope of the retroactivity clause—that is, to make more provisions apply retroactively. The only provisions in the 1980 version with retroactive effect concerned fumigant usage. In seeking to identify appropriate candidates for retroactive application, the intent, according to the committee chairman, was to include "operational" requirements but not those requiring "even a dime of investment."

The results of the 1985 revisions are revealing because the committee chose to include the housekeeping provisions in the group to be given retroactive effect. This change appears to make 61B more credible. After all, shouldn't old and new facilities alike be expected to do proper maintenance or take precautions to ensure that welding is done safely? In light of the "not even a dime of investment" principle, however, the committee's action seems more significant for what it admits about the housekeeping provisions—that they do not require anything more than what an operator is already doing.