Jess McCluer has been vice president of safety and regulatory affairs at the National Grain and Feed Association (NGFA) in Arlington, VA since 2007. As such, he serves as staff liaison to such regulatory agencies as the Occupational Safety and Health Administration (OSHA), Food and Drug Administration (FDA), Environmental Protection Agency (EPA), and the Federal Grain Inspection Service (FGIS).
In August 2020, Grain Journal sent interview questions to McCluer at his Arlington office to get an update on some regulatory and safety-related issues of concern to the grain and feed industries, as well as to get a sense of the regulatory climate in light of the coronavirus pandemic.
What are the biggest issues in the area of government regulation currently of concern to the grain and feed industries?
Currently, under the Trump administration, there are not many new rules under development at OSHA, EPA, or FDA that directly impact the grain and feed industries. However, there are still some important issues that NGFA is actively monitoring:
Occupational Safety and Health Administration (OSHA)
Emergency response and preparedness. Under the Obama administration, the National Advisory Committee for Occupational Safety and Health (NACOSH) recommended to the secretary of labor that the agency create a proposed emergency response and preparedness (ERP) safety standard. Subsequently, NACOSH created a subcommittee to develop draft regulations to potentially replace the standard that governs the establishment and existence of fire brigades and private fire departments.
The scope of the proposed language applies to organizations covered under the jurisdiction of federal OSHA and state plans and defines emergency service groups as entities that are, “involved in ... technical rescue (trench/excavation, confined space, rope/high angle) ... ”
Now, OSHA has stated that it wants to revise the Hazard Communications standard further to align it with the current United Nations globally harmonized standard version 7.
The primary concern is that whatever requirements are placed upon the ERP, they certainly are going to carry over to organizations that they work with, such as grain handling facilities. Some examples include:
OSHA’s agenda indicates that the agency plans to convene a Small Business Advocacy Review (SBAR) (also known as SBREFA) panel in October 2020 that includes an NGFA member. The panel will provide OSHA with feedback on its proposed changes to the standard and, from a small business perspective specifically, let OSHA know the potential cost it will incur. The agency is required to do this before moving into the formal rulemaking process of submitting a proposed rule for public comment.
Hazard communications. Everyone should be familiar with OSHA’s Hazard Communications standard. The last revision made to this standard had quite an impact on the grain handling industry, where OSHA classified grain as a chemical hazard. That was because grain produces a combustible dust when processed.
We also have numerous safety tip sheets, online training modules, training videos, and guidance documents. All of this information is available at no charge to either members or nonmembers of the association.
Now, OSHA has stated that it wants to revise the Hazard Communications standard further to align it with the current United Nations globally harmonized standard version 7. As a result, OSHA has indicated that the date for publication of the notice of proposed rulemaking (NPRM) to harmonize the existing hazard communications standard with the Grain Handling Standard (GHS) is August 2020. However, there has been no activity on this standard since the agency held a stakeholder meeting in November 2016.
Lockout/tagout. In 2019, OSHA issued a Request for Information (RFI) seeking information regarding two areas where modernizing the Lockout/Tagout standard might better promote worker safety without additional burdens to employers: control circuit type devices and robotics. NGFA signed on to the comments submitted to OSHA by the Coalition for Workplace Safety, a coalition led by the U.S. Chamber of Commerce. The agency plans to publish an NPRM by April 2021.
Powered industrial trucks (PITs). Last year, NGFA submitted comments on OSHA’s RFI seeking feedback from stakeholders regarding the use of PITs for maritime (1915.120, 1917.43, 1918.65) construction, (1926.602(c), (d)), and general industries (1910.178). In particular, NGFA asked OSHA to clarify the definition of a skid steer, which is commonly used in the grain, feed, and processing industry. An NPRM is planned to be published in December 2020.
Walking-working surface. The agency plans to correct a formatting error in Table D-2 of the existing standard and also revise the language of the requirements for stair rail systems to make them clearer and reflect OSHA’s original intent. The NPRM previously was scheduled to be published in June 2020.
Environmental Protection Agency (EPA)
The Trump administration has put on hold proposed new source performance standards for dust emissions from grain facilities. Proposed amendments to these standards would have put new restrictions on temporary storage structures. NGFA is continuing to work with senior EPA political staff to have the proposed rule formally withdrawn.
Food and Drug Administration (FDA)
FDA is continuing its ongoing implementation of the Food Safety and Modernization Act (FSMA) by conducting inspections and issuing guidance documents that describe the agency’s thinking about different FSMA-related topics. NGFA is monitoring inspection experiences actively to identify problematic issues associated with FDA’s compliance activities. In addition, FDA is scheduled to issue a proposed rule by Sept. 8 that would establish additional traceability requirements for foods the agency deems to be “high risk.” FDA will propose what foods the agency believes should be designated as high risk during the rulemaking process.
What effect has COVID-19 had on the regulatory picture in the grain and feed industries? Do you anticipate any new regulations coming out of the pandemic?
States are beginning to institute their own workplace safety rules in response to the COVID-19 pandemic. The standards are based on efforts of the Democrat-controlled U.S. House of Representatives, emphasizing the need for an emergency temporary standard (ETS) in response to the coronavirus pandemic. This ETS proposal is being opposed by the Republican majority in the U.S. Senate.
Virginia became the first state to create its own set of rules for workplaces, with its governor, Ralph Northam, saying he was frustrated with OSHA for declining to impose a nationwide COVID-19 standard. The U.S. Court of Appeals for the DC Circuit on June 11 rejected a petition from AFL-CIO to order OSHA to issue an ETS applicable for infectious diseases/COVID-19. The AFL-CIO has petitioned for a rehearing by the full appeals court, so the matter remains pending.
The Virginia Department of Labor and Industry adopted its ETS – Infectious Disease Prevention: SARS-CoV-2 Virus That Causes COVID-19 – on July 15. The standard went into effect on July 27.
Virginia employers will be given 60 days “to develop and train employees on their infectious disease preparedness and response plan.” The ETS requires employers to implement numerous policies to prevent and respond to a COVID-19 infection within their workforce.
Under the standard, employers will be required to classify their employees by risk level of exposure, establish and implement a system for self-assessment and screening of employees for COVID-19 symptoms, implement procedures designed to prevent ill individuals from infecting healthy employees, and require social distancing or respiratory protection if social distancing isn’t possible.
Employers would be required to notify workers of possible exposure to infected co-workers within 24 hours and provide flexible sick leave policies, telework, and staggered shifts whenever feasible. The standard also prohibits retaliation against workers who raise concerns about a workplace’s infection-control policies.
Virginia officials have stated that the state’s inspectors will enforce the new regulations and could issue penalties up to $124,000 or even force closures of workplaces in severe cases.
Meanwhile, Oregon’s OSHA currently is developing its own COVID-19 safety standards. The state aims to have two temporary standards in place by Sept. 1. One is expected to address healthcare providers, while the other would cover the general workplace. Drafts of the proposals are expected the week of Aug. 17, at which time the comment period will be open until Aug. 31. A final temporary rule is expected to go into effect on Sept. 14 through February 2021.
The agency also plans to issue permanent infectious-disease regulations. The permanent standards will be developed by two rulemaking advisory committees with public input. A draft of these standards is scheduled for release in early November, with a March 1, 2021 implementation date.
What regulatory changes would NGFA most like to see?
One of President Trump’s top priorities is regulatory reform. His overall goal of jump-starting economic growth is to limit, unwind, repeal, or delay a host of regulations, executive orders, agency guidances, and presidential memoranda promulgated by the Obama administration.
Unfortunately, many of the changes related to safety and health have been delayed due to the lack of confirmation of a permanent assistant secretary of labor for OSHA. At this point, in the Trump administration, we don’t expect a lot of initiatives to move forward until after the election in November. The same applies to the EPA and FDA for environmental and food safety matters, respectively.
If there is a second term for the Trump administration, NGFA believes it’s time for the grain industry to be removed from the various OSHA local and regional emphasis programs due to significant reductions in the number of dust explosions and grain engulfments. Regarding FSMA, NGFA would continue to urge FDA actively to revise certain policies so that its food safety regulations are applied in a more practical and risk-based manner.
A potential Joe Biden administration could mean enhanced focus on enforcement and rulemaking instead of regulatory reform and compliance assistance.
What is the current situation with the alliance between NGFA and OSHA?
NGFA renewed its cooperative alliance with OSHA on May 1, launching a five-year agreement with the agency along with the Grain Handling Safety Council (GHSC) and Grain Elevator and Processing Society (GEAPS) as fellow signatories.
Through the alliance, the four signatories agree to work to reduce and prevent exposure to safety and health hazards associated with the grain handling and storage industry, such as: falls, entanglements, combustible dust, electrical, engulfment, and struck-by hazards.
NGFA and OSHA first formed a two-year alliance in 2017 focusing on outreach and communication. The new five-year agreement includes training and education goals and the addition of GHSC and GEAPS to the agreement.
An implementation team consisting of representatives from OSHA, NGFA, GHSC, and GEAPS met on May 21 to discuss how to implement the goals of the alliance, which include:
Outreach and communication:
Training and education:
• Make available and promote effective training and education programs and resources for grain industry employers, workers, and others, regarding the hazards associated with grain handling and storage.
What are good sources of regulatory information grain and feed industry managers use to stay abreast of changes and stay out of trouble?
Under the Safety section on the NGFA website, www.ngfa.org, we have information about our alliance with OSHA, emphasis programs, and training and education. We also have numerous safety tip sheets, online training modules, training videos, and guidance documents. All of this information is available at no charge to both members and nonmembers of NGFA.
In addition, NGFA holds regional regulatory compliance seminars. We work with our state and regional affiliates to hold four to six seminars every year. These events are done as part of our alliance with OSHA and provide an opportunity for participants to interact with agency staff. Prior to the COVID-19 shutdown, NGFA conducted five seminars in Washington State, Montana, Kansas, Texas, and Indiana.
Through the NGFA-OSHA alliance, NGFA worked with GEAPS and the GHSC to develop a web page, www.standup4grainsafety.org, which has numerous resources that either were developed by each group or our respective members that focus on a wide variety of topics.
Finally, the NGFA feed website – http://feed.ngfa.org – has a wide variety of resources to help the industry understand and comply with FDA food safety requirements. In addition, NGFA is actively involved in delivering the Food Safety Preventive Controls Alliance training designed to help the industry comply with the FSMA-related animal food regulations.