President Biden’s January 21, 2021 Executive Order (EO) on COVID-19 tasked the Occupational Safety and Health Administration (OSHA) to: launch a national enforcement program, review and correct any shortcomings in their prior enforcement strategies and to determine whether any Emergency Temporary Standards (ETS) were necessary and, if so, to issue an ETS by March 15,
Breaking News: Sweeping Changes to OSHA’s Sweep Auger Enforcement
By Amanda R. Strainis-Walker and Eric J. Conn
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.”…
Continue Reading Breaking News: Sweeping Changes to OSHA’s Sweep Auger Enforcement
Unsurprising Results from OSHA’s Recordkeeping NEP
By Eric J. Conn, Head of the OSHA Practice Group
According to a recent report to Congress from OSHA, the Agency’s multi-year Injury & Illness Recordkeeping National Emphasis Program (“Recordkeeping NEP”) continued through its termination in 2012 to yield less alarming results than the OSHA leadership team forecasted, despite revising the program in late…
D.C. Circuit Limits OSHA’s Recordkeeping “Madness”
By Eric J. Conn and Casey M. Cosentino
In what has been good news for hospitality employers, the past month has been a rough stretch for OSHA in terms of Injury and Illness Recordkeeping enforcement. As we reported last month on the OSHA Law Update Blog, in March, the Seventh Circuit beat back OSHA’s…
OSHA Launches New Nursing Home National Emphasis Program
By Julia E. Loyd and Eric J. Conn
Last week, the U.S. Department of Labor’s Occupational Safety and Health Administration (“OSHA”) launched a new National Emphasis Program targeting Nursing Homes and Residential Care facilities (“Nursing Home NEP”). In an accompanying Press Release, OSHA announced that the Nursing Home NEP aims to protect workers from…
2011 Rundown of OSHA’s Combustible Dust National Emphasis Program and Rulemaking
By Amanda R. Strainis-Walker and Eric J. Conn
OSHA’s keen interest in enforcement related to combustible dust shows no sign of waning as we close the door on 2011. OSHA’s Combustible Dust National Emphasis Program (NEP), initiated in 2008, continued in earnest through 2011, and notably, has no expiration date. The number of violations…
10 Things You Must Know About OSHA’s Nationwide Chemical Facilities PSM NEP
By Eric J. Conn, Head of the OSHA Practice Group at Epstein Becker & Green
At the end of November 2011, OSHA announced that it had extended nationwide what had been a limited pilot enforcement program targeting chemical facilities’ compliance with OSHA’s Process Safety Management Standard in a few Regions of the country. This…
OSHA Forecast – Top 5 OSHA Developments to Look Out For In 2012
By Eric J. Conn and Amanda R. Strainis-Walker
As the clock winds down on 2011, a truly remarkable year of OSHA enforcement, it is time to think about 2012. Notwithstanding the fact that 2012 is an election year, and much of OSHA’s rulemaking activities will be shelved until the day after the election, 2012 is…
OSHA’s Primary Metals National Emphasis Program Begins
By Casey M. Cosentino and Eric J. Conn
On June 2, 2011, OSHA launched an enforcement National Emphasis Program focused on employers and hazards in the Primary Metals Industries (“Primary Metals NEP”). Establishments in the primary metals industries are those involved in extracting and refining metals from rocks containing iron, lead, nickel, tin and other…
OSHA Targets Manufacturers, Nursing Care Facilities, and Chemical Plants
By Eric J. Conn
What do manufacturers, nursing homes, and chemical companies have in common? They all represent industries receiving special enforcement scrutiny from today’s OSHA.
OSHA is targeting manufacturers under a major Recordkeeping Enforcement National Emphasis Program (Recordkeeping NEP). OSHA launched the Recordkeeping NEP at the end of 2009, originally selecting inspection targets across