Grain Bin Safety Hazards Have Implications for Biomass Storage
Biofuel companies often store grain in bins, which makes them a target of investigation by the U.S. Occupational Safety and Health Administration. A new initiative by the government to focus on chemical processing plants, which includes biofuel production and certain biomass storage facilities, means more inspections and potentially higher fines for the industry.
Last year, the head of federal OSHA responded to a series of fatal accidents in grain storage facilities with a letter to 3,300 grain facility storage operators. The letter identified specific steps that are required of employers by existing law, naming three companies recently issued combined penalties of almost $4 million. The letter concluded with this warning: “If any employee dies in a grain storage facility, in addition to any civil penalties proposed, OSHA will consider referring the incident to the Department of Justice for criminal prosecution pursuant to the criminal provisions of the Occupational Safety and Health Act of 1970.”
The OSHA administrator’s letter demonstrates the current tone of his agency, including its inclination to refer all appropriate cases for possible criminal prosecution. It also highlights the focus OSHA is placing on deaths caused by entrapment hazards, especially in agricultural industries. And it puts the industry on notice of OSHA’s view of those hazards, setting the stage for willful citations in the event of any such deaths.
Given the focus on biomass aggregation to create a more cost efficient, stable supply chain, the biomass industry is experiencing a greater need for storage facilities. Companies that store feedstock materials must be aware of OSHA standards that apply to those storage facilities, and biomass companies with storage facilities should pay close attention to the regulation of grain storage in the biofuel sector, even if the particular feedstock is nongrain biomass. In addition to OSHA’s specific grain handling standards, there are standards that apply to the storage of other biomass, including confined space, lockout/tagout, electrical, and fall protection standards.
If employees are entering feedstock storage containment facilities but the employer has not implemented a permit system to control and monitor those entries, the facility's management should take note that the applicable regulations either have not been adequately recognized or have not been followed. Generally speaking, when an employee enters a storage bin, the air must be monitored before and during entry, ventilation must be in place, equipment must be locked out and the entrants must be tied off to a lifeline and harness attached to hoisting equipment in case of an emergency. An attendant must be outside the facility in case the employee inside is overcome.
OSHA standards for grain storage also address fire and explosion hazards by requiring that equipment and tools be appropriately designed to avoid ignition of grain dust. Other biomass feedstock will be treated the same as grain. If a material poses the potential for fire, engulfment, entrapment or suffocation of employees, OSHA regulates it.
Facility operators must protect not only their own employees, but also the employees of contractors on site, such as companies that build or repair bins. The facility owner, and the contractor, likely will be targeted by OSHA, or be subject to substantial liability, including criminal charges, where a contractor’s employee is injured or killed in a storage bin.
Unlike grain handling, where a specific standard applies, the storage and processing of nongrain biomass are not subject to a specific set of OSHA standards. Nevertheless, companies that have such operations need to understand how OSHA’s general industry requirements apply to their feedstock handling and storage. If in doubt, a biomass company should arrange for legal counsel to engage experts who will evaluate the extent of its legal compliance, making reports and recommendations. Any reports by those experts, in most jurisdictions, can be protected as attorney/client privileged material. This is especially important where OSHA is focusing on criminal prosecution.
Authors: Charles Palmer
Attorney, Michael Best & Friedrich LLP
Attorney, Michael Best & Friedrich LLP