866 F.2d 717 (5th Cir. 1988), 87-4960, National Grain and Feed Ass'n v. Occupational Safety and Health Admin.

Docket Nº87-4960, 88-4256.
Citation866 F.2d 717
Party NameNATIONAL GRAIN AND FEED ASSOCIATION and Great River Grain Corporation, Petitioners, v. OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION, Respondent. FOOD AND ALLIED SERVICE TRADES DEPARTMENT, AFL-CIO, et al., Petitioners, v. Ann D. McLAUGHLIN, Secretary of Labor, Respondent.
Case DateOctober 27, 1988
CourtUnited States Courts of Appeals, United States Court of Appeals (5th Circuit)

Page 717

866 F.2d 717 (5th Cir. 1988)

NATIONAL GRAIN AND FEED ASSOCIATION and Great River Grain

Corporation, Petitioners,

v.

OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION, Respondent.

FOOD AND ALLIED SERVICE TRADES DEPARTMENT, AFL-CIO, et al.,

Petitioners,

v.

Ann D. McLAUGHLIN, Secretary of Labor, Respondent.

Nos. 87-4960, 88-4256.

United States Court of Appeals, Fifth Circuit

October 27, 1988

As Amended Jan. 24, 1989.

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[Copyrighted Material Omitted]

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Jerome J. Reso, Jr., H. Sloan McCloskey, New Orleans, La., for Nat. Grain and Feed Ass'n.

Mike Miller, Fargo, N.D., Marc L. Fleischaker, V. Daniel Palumbo, Washington, D.C., for amicus curiae, North Dakota Grain Dealers Assoc.

Randy S. Rabinowitz, Washington, D.C., for intervenor the Food & Allied Service Trades.

Barbara Werthmann, Jay S. Bybee, U.S. Dept. of Labor, Leonard Schaitman, Washington, D.C., for Occupational Safety and Health Admin.

Page 720

W. Caffey Norman, III, Robert H. Myers, Jr., Washington, D.C., for Millers' Nat. Federation.

Randy S. Rabinowitz, Washington, D.C., for Food and Allied Service Trades Dept., AFL-CIO.

David C. Vladeck, Public Citizen Lit. Group, Alan Morrison, Washington, D.C., for intervenor--Oil, Chemical & Atomic Workers.

Richard L. Frank, Philip C. Olsson, Washington, D.C., for intervenor--American Feed Ind. Assoc.

Marc L. Fleischaker, Washington, D.C., for intervenor--Nat'l Grain & Feed Assoc.

Ray H. Darling, Exec. Secretary, OSHRC, George R. Salem, Deputy Sec., Dept. of Labor, Jay S. Bybee, U.S. Dept. of Justice, Civil Div. Leonard Schaitman, Washington, D.C., for Ann McLaughlin.

Petitions for Review of a Final Standard Issued by the Occupational Safety and Health Administration.

Before GARZA, WILLIAMS, and SMITH, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

In December 1987, the Occupational Safety and Health Administration (OSHA), exercising its authority and responsibility under section 6 of the Occupational Safety and Health Act ("OSH Act" or the "Act"), 29 U.S.C. Sec. 655, promulgated a new standard designed, in relevant part, to eliminate or reduce the substantial risk of fires and explosions in the nation's grain-handling facilities. 1 In these consolidated petitions, parties representing both labor-union and industry interests challenge the new standard, particularly the scope of one of its provisions that requires grain elevator operators to initiate clean-up procedures whenever grain dust accumulations reach a depth of 1/8 inch in certain "priority areas" of the facility.

The unions 2 contend that the 1/8 -inch "action level" provision does not go far enough to protect workers: It should extend beyond priority areas to encompass the entire facility, and it should be mandated not only for grain elevator operators but for grain mills as well. Intervenors representing grain mill operators 3 have countered with briefs supporting the Secretary's decision not to subject grain mills to the action level. The grain elevator operators--or industry petitioners 4--argue that the action level is unwarranted because its benefits cannot justify its costs, because it cannot be shown to reduce a substantial risk, and because its costs would cause the industry widespread economic dislocation.

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Finding that the record does not contain substantial evidence to support either (i) OSHA's economic-feasibility determination or (ii) its decision not to mandate a facility-wide action level for grain elevators, we remand for further consideration on these points. In all other respects, we deny the petitions challenging OSHA's grain-facilities standard.

I. Background.

Fires and explosions in grain-handling facilities have been documented for almost two centuries, although such occurrences probably date back to even earlier times, when structures for storing grain in large quantities were first developed. Only recently, however, has come the impetus for systematic investigation and prevention of these disasters. During an eight-day period beginning on December 21, 1977, and ending on December 28, a series of devastating explosions left 59 dead persons and 48 injured. 52 Fed.Reg. 49,592 (1987). Moved by the 1977 catastrophes, numerous government agencies, including OSHA, the National Institute for Occupational Safety and Health (NIOSH), and the Department of Agriculture (USDA) responded to the hazards of grain storage.

OSHA, in particular, took several steps. First, it issued a Grain Elevator Industry Hazard Alert and provided free on-site consultation services. 49 Fed.Reg. 997 (1984). It also attempted, albeit with only limited success, to enforce the general-duty clause in section 5 of the OSH Act, 29 U.S.C. Sec. 654(a)(1), and OSHA's general industry housekeeping regulations, as a means to move the industry toward safer practices. 5 Industry, however, vigorously resisted these enforcement efforts, and employers generally were successful in arguing that OSHA had not proved that the specific condition cited could cause a fire or explosion. 6

Another step taken by OSHA in 1978 was to commission studies of the causes and prevention of grain elevator fires and explosions. Commissions went to the National Academy of Sciences (NAS) and to Charles Kauffman, Ph.D., and Robert Hubbard, former Vice President of Cargill. In addition, USDA and NIOSH contemporaneously conducted their own studies of worker safety in grain elevators and mills. 52 Fed.Reg. 49,592-93 (1987).

The reports issued by the NAS, NIOSH, Kauffman and Hubbard, and the USDA were essentially consistent. All recognized that a grain elevator explosion is the result of a concatenation of 7 four essential elements: (1) grain dust must collect in the elevator; (2) the grain dust must be suspended in air inside the elevator at a concentration above the lower explosive limit (L.E.L.) 8 ; (3) the suspended grain dust must be ignited; and (4) sufficient grain dust to sustain rapid combustion must be in

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the vicinity of the initially-ignited grain dust.

Thus, if the interior of a facility is dusty, a primary or initial explosion that causes only relatively slight damage can shake loose a large, suspended dust cloud. Ignition of this fuel supply by hot dust particles or flame from the primary explosion can then cause a secondary explosion, a series of successively more violent explosions. Pressure waves preceding the flame fronts disperse static dust accumulations into the atmosphere, making even greater amounts of dust available to fuel the flame fronts. This activity has been likened to the expanding ripples that occur on the surface of a still pond after a pebble is tossed into it.

Secondary explosions cause the vast majority of injuries and deaths, because they tend to be much more severe than primary explosions. 52 Fed.Reg. 49,59 2 (1987). Of the major grain elevator explosions occurring between 1979 and 1981, secondary explosions accounted for 96 percent of the property loss, 85 percent of the fatalities, and 91 percent of the injuries.

Even relatively small amounts of layered dust can create dust clouds sufficient to cause an explosion, and the more dust that is present, the greater the hazard. The USDA has found, for example, that accumulations as low as 1/16 inch can initiate a primary explosion, and "[t]he more dust present, the greater the chance of ignition." NIOSH found that a dust layer 1/64 inch deep in an enclosure 10 feet in height can create a dust cloud above the LEL when uniformly dispersed. NAS noted that "if accumulations of dust are visible, the elevator has a potential explosion problem. The thicker the layer of dust, the greater are both the possibility of an explosion and the severity of the resulting damage."

Any movement or handling of grain produces grain dust, and this occurs at each point in the grain-handling system from farm to ultimate consumer. In a grain elevator, numerous activities subject the grain to mechanical stress leading to the production of grain dust. Grain is delivered to an elevator by truck, rail, or barge, and is dumped into a pit that feeds a conveyor belt leading to the "boot," which is called the bottom of the leg. The leg is an enclosed vertical, endless-belt bucket conveyor that elevates the grain and discharges it into the top of a garner, or collection bin, in the elevator "head."

Grain is discharged from the bottom of the garner into a scale bin for weighing. Afterwards, the grain is made to flow out of the bottom of the scale bin onto a belt conveyor that drops the grain, up to 100 feet, into a bin or silo. Grain is later conveyed back into the bottom of the leg, where it may be re-elevated for mixing and redistributed into a silo, or loaded for shipment. Typically, the grain is elevated in the leg and dropped into the silo at least twice. 9

Grain dust does not remain forever airborne but tends to settle on nearly every horizontal surface in the facility, hidden or exposed. Accumulations near the leg are by far the most hazardous, as they contain so many potential ignition sources. As one expert observed, "[i]t is the one piece of equipment with an environment of suspended dust that is continually subject to 'choking' (boot fills with grain and buckets will not turn), electrical faults, bearing failures, mechanical misalignments, ingestion of foreign material, etc." NAS Report at 46.

All of the studies of grain-handling hazards concluded that comprehensive dust control is central to the control of fires and explosions. Kauffman and Hubbard concluded that 11 of the 14 secondary explosions they studied could have been prevented by a good housekeeping program, and that two were attributable to improper installation of the dust-control system. NAS explained that given the impossibility of

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eliminating all the elements for grain dust explosion, "there is no single, simple process for...

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    ...the General Duty Clause in upholding, in large part, the standard. See Nat'l Grain & Feed Ass'n v. Occupational Safety & Health Admin., 866 F.2d 717, 721 (5th Cir. 1988) (noting Secretary's difficulty in proving explosion hazards of grain handling under General Duty Clause). Although OSHA h......

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