The OSHA Standard Prevails (with Minor Improvements)
The stalemate between OMB and OSHA lasted until there were two more serious explosions. In July 1987, following a fatal explosion in
Burlington, Iowa, Senator Tom Harkin (D-Iowa) complained to the OMB director about delays in releasing the rule. He complained again four months later, following another explosion. The rule was published on the last day of 1987.
The rule contains a major change, but not an actual softening, in OSHA's position on housekeeping. The standard retains the action level of one-eight of an inch for housekeeping—eliminating the ineffective "once-a-shift sweeping" option. OSHA modified the provision, however, by limiting its application to three "priority areas." This seems much more reasonable than the earlier version, which applied to any 200-square-foot area in the facility. It may even help reduce frivolous or unreasonable enforcement actions. But it does little to alter the basic housekeeping tasks required by the rule, since many of the steps used to minimize grain dust in "critical" areas will also minimize it elsewhere. OSHA also moderated the rule slightly to favor country elevators. Some country elevators are exempt from the requirements for alignment and motion detection devices. But none are exempt from the action-level requirement. Country elevators were given three extra years to come into compliance, however. The symbolism of these changes, all conciliatory, far exceeds their actual substantive impact.
The most substantial change in the final standard concerned feed mills, and again the adjustment was in the direction of leniency. In response to arguments that risks are lower in feed mills, OSHA exempted these facilities from the most powerful provisions in the standard: the housekeeping and bucket elevator requirements. OSHA defended this decision, calculating that "the risk of an employee death or injury resulting from an explosion is almost five times greater in grain elevators than in mills." OSHA rejected this line of argument in the case of country elevators, however, justifying the apparent discrepancy on the grounds that "the available data are not sufficient to permit an accurate estimate of the relative risks in large and small elevators." Although nobody was entirely pleased with the final standard, it certainly was reasonable in many respects. An editorial in the trade journal Feedstuffs, often an outspoken critic of OSHA, allowed that "grain elevators and feed mills can be much safer places to work merely as a result of OSHA's attention…. The rules on bin and entry, housekeeping plans, work permits, etc., are needed. A federal edict appears to be the best way to implement such rules." But industry was incensed at the housekeeping requirements and immediately challenged them in court. Labor countered, challenging the exemption for feed mills. The
Fifth Circuit Court of Appeals upheld all but the housekeeping provisions, remanding that issue for "reconsideration of the economic feasibility of the standard."