By Amanda R. Strainis-Walker
OSHA recently launched a Regional Emphasis Program (REP) that will focus enforcement resources on employers operating in the automotive supply manufacturing industry. This new Auto Supply Manufacturers enforcement program will target manufacturers in the southeast that supply engines, airbags, trim, or any other automotive products. The specific geographic areas covered by the inspection program include at least Georgia, Mississippi, and Alabama.
“Hazards associated with the Auto Parts Supplier Industry that are the focus of this REP ...
The roller coaster ride that has been OSHA’s enforcement policy in connection with work inside grain bins with energized sweep augers has taken another major turn. After decades of employees working inside grain bins with sweep augers, a string of recent, somewhat confusing, Interpretation Letters issued by OSHA effectively banned the practice outright. Now, a groundbreaking settlement of an OSHA case against an Illinois grain company became a Final Order of the OSH Review Commission in January, and that settlement renewed the industry’s right to work inside grain bins with energized sweep augers, and provided real clarity as to the conditions that OSHA considers to be acceptable for that work.
A sweep auger is a mechanism that attaches to a pivot point in the center of a flat-bottom grain bin, and then travels at very slow speeds in a circle around the bin, pulling grain from the perimeter of the bin towards a floor sump in the center of the bin by a helical screw blade called a flighting, where the grain exits to another conveying system. Generally, one or more workers will be positioned inside the bin behind the sweep auger to make regular adjustments to the auger to keep it advancing on track, and also to manually sweep grain not captured by the auger.
By design, a sweep auger is typically guarded from accidental contact on the top and backside, but it cannot be guarded on the front, or the flighting of the auger would not be able to contact the grain, and therefore, would not convey grain towards the center sump. In other words, the basic functionality of a sweep auger would be nullified if it were guarded on all sides.
The Grain Standard
The legal landscape about the use of sweep augers with employees inside grain bins has had many throughout the Ag Industry confused for years. Part of the confusion dates back to the original implementation of the Grain Handling Standard (29 C.F.R. § 1910.272). The final Grain Standard, which was published in 1987, did not include any provision to address the use of sweep augers or the conditions in which an employee may work inside a grain bin with an energized sweep auger. The final rule did, however, include a general requirement about equipment inside grain bins at 1910.272(g)(1)(ii):
"All mechanical, electrical, hydraulic, and pneumatic equipment which presents a danger to employees inside grain storage structures shall be deenergized and shall be disconnected, locked-out and tagged, blocked-off, or otherwise prevented from operating by other equally effective means or methods."
Varying informal interpretations by OSHA about the language in the Standard: “which presents a danger” and “other equally effective means or methods,” resulted in inconsistent enforcement by OSHA in connection with sweep augers over the years. A series of formal OSHA Interpretation Letters beginning in 2008, however, changed that landscape.
OSHA’s Sweep Auger Interpretation Letters
Around the same time that OSHA began to scrutinize the grain industry following a rash of engulfment incidents inside grain bins, OSHA also began to focus more attention on the issue of potential employee entanglement in the moving parts of sweep augers. That attention was spurred in part by a letter to OSHA from an insurance agent seeking a formal interpretation of requirements related to grating/guarding on sumps inside grain bins with sweep augers.
The insurance agent’s letter described a scenario in which an employer required employees to maintain a distance of at least six feet behind a partially-guarded or unguarded sweep auger. In a September 29, 2008 Interpretation Letter from OSHA responding to the insurance agent’s request, OSHA linked 1910.272(g)(1)(ii) to the use of sweep augers, and expressed the position that employees were prohibited from being inside grain bins with energized sweep augers unless the employer could demonstrate that appropriate protections were provided to prevent employees from exposure to the hazards of the moving machinery. OSHA further stated that completely guarding the machine and a rope positioning system to prevent employee contact with the energized equipment (i.e., a leash for employees), would be effective methods to protect employees. Finally, the letter opined that an administrative policy requiring employees to maintain a safe distance of six feet from partially-guarded and unguarded sweep augers was not an “otherwise equally effective means or method” that satisfies 1910.272(g)(1)(ii).
Shortly after OSHA issued the September 29, 2008 Interpretation Letter, the same insurance agent sent a second request to OSHA for further clarification, explaining that a sweep auger could not, by design, be completely guarded, and that the rope positioning system that OSHA suggested would be “extremely dangerous.” This second letter specifically asked for OSHA’s interpretation as to whether an employee could be inside a grain bin with an energized sweep auger. OSHA responded to this second request with another formal Interpretation Letter on Christmas Eve of 2009, with a direct “no.” OSHA reasoned in the December 24, 2009 Interpretation Letter that if the methods proposed earlier by OSHA (i.e. guarding the operating side of the auger or putting a leash on employees) were ineffective, then the Agency was “not aware of any effective means or method that would protect a worker from the danger presented by an unguarded sweep auger operating inside a grain storage structure.”
By Eric J. Conn, Head of the OSHA Practice Group
We recently authored an article for Feed & Grain magazine entitled "When OSHA Comes Knockin'." The article explains why employers in the grain industry need to be prepared for an OSHA inspection, and outlines steps they should take to prepare for and manage a visit from an OSHA inspector.
Here is an excerpt from the article:
As Alexander Graham Bell famously said, "Before anything else, preparation is the key to success." No truer words could be said to employers in the grain industry today about OSHA inspections. Secretary of Labor, Hilda ...
Late last year, I delivered a keynote address to the National Grain & Feed Association’s (NGFA) annual Country Elevator Conference regarding:
- Why it is important for grain handlers to prepare now for an OSHA inspection;
- What to do now to prepare for an OSHA inspection; and
- How best to manage an OSHA inspection once it begins.
- Podcast: Latest Developments – Restrictive Covenants in the Health Care Industry – Employment Law This Week
- San Francisco Releases Generative AI Guidelines for City Workers
- Video: SECURE 2.0 Act - Navigating New Retirement Plan Provisions in 2024 - Employment Law This Week
- Updated for 2024: Epstein Becker Green’s Free Wage-Hour App
- Video: California’s Non-Compete Notice Deadline Approaches, California Workplace Violence Regulations, Estrada Decision Keeps Door Open for PAGA Challenges - Employment Law This Week