The Occupational Safety & Health Administration’s (OSHA) roller coaster ride of enforcement policy in connection to sweep augers and bin entry has taken another major turn.
After a recent string of confusing interpretation letters issued by OSHA effectively banned the practice of employees working with sweep augers inside of grain bins without nullifying the equipment’s functionality by requiring the auger to be guarded on all sides, a ground-breaking settlement of an OSHA case against an Illinois grain company appears to have reversed that policy. The settlement, which became a final order of the OSH Review Commision in mid-January, renews the industry’s right to work inside grain bins with energized sweep augers, and provides clarity to the conditions that OSHA deems acceptable for that work.
The grain standard
The recent legal landscape about the use of sweep augers and bin entry has left the ag industry perplexed. Much 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 de-energized 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. However, starting in 2008, a series of formal OSHA Interpretation Letters shifted the dialogue at a national — and enforcement — level.
OSHA’s interpretation letters
As OSHA began to scrutinize the grain industry following a rash of engulfment incidents, 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 Sept. 29, 2008 Interpretation Letter from OSHA responding to the 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 6 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 Sept. 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 because the auger has to be able to contact grain, and that the rope positioning system that OSHA suggested would be “extremely dangerous.”