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 Dec. 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.”
Industry, congressional outreach to OSHA
The second Interpretation Letter caused considerable turmoil in the grain industry. Employers wanted to comply with the Grain Standard, but found themselves scratching their heads about how to do that. Many in the industry attributed the rejection of this long-standing practice for cleaning grain bins to OSHA’s misunderstanding regarding sweep auger operations. Indeed, OSHA rebuffed several attempts by trade associations and industry leaders to help educate OSHA about safe methods of sweep auger operations, and repeated requests for additional guidance from OSHA for how grain handlers should resolve the dilemma surrounding the use of sweep augers with employees inside grain bins.
When OSHA did not engage with the industry further, trade associations and employers solicited the help of Congress. OSHA responded with two additional Interpretation Letters regarding sweep augers responding to requests from Senator Charles E. Grassley (R-IA) and Congresswoman Kristi Noem (R-SD) on May 16, 2011 and Feb. 16, 2012 respectively.
Neither letter provided alternatives that would satisfy the “other equally effective means or methods” provision of 1910.272(g)(1)(ii), and simply reiterated that OSHA considered a sweep auger to be unguarded if the front operating side was not also covered.
Many industry representatives viewed OSHA’s interpretation letters as an indication that OSHA lacked complete understanding of sweep augers and how they are used in the industry. For example, in the interpretation letter to Senator Grassley, OSHA describes sweep augers as “fast moving” with the potential to “sweep the worker into the discharge sump … resulting in a grain entrapment.”
Although the machines often have high revolutions per minute (RPM) outputs, those RPMs drive the flighting that contacts and pulls grain, but it is wholly unrelated to the speed at which the augers move around bins, which is actually very slowly.
Meanwhile, as the industry tried to educate OSHA about its apparent sweep auger misunderstanding and gain clarification about how to operate sweep augers in compliance with the Grain Standard, OSHA began issuing citations to employers based on the new Interpretation Letters. The Interpretation Letters, in conjunction with the surge of grain elevator inspections under the Grain Handling Facilities Local and Regional Emphasis Programs in the grain states in the United States, raised the profile of the sweep auger issue, and led to a surge of citations for a long-standing practice.
Several of these citations were challenged by employers, including one to a federal OSHA sweep auger citation, and another to a Maryland OSHA (an OSHA-approved State Plan) citation, both of which were litigated to a decision by administrative law judges. In both cases, the sweep auger citations were vacated because the judges reasoned OSHA had not proven that any employees were in a “zone of danger” or that the augers were not adequately guarded.
However, since the federal OSHA case was not appealed or taken up by the OSH Review Commission and the other case was in a State Plan state, neither decision provided a binding legal precedent on OSHA, nor did they shed light on what OSHA would consider to be “equally effective means or methods” for employees working inside grain bins with energized sweep augers.
Even though OSHA was losing the sweep auger cases in litigation, the agency continued to issue citations for employees working inside grain bins with energized sweep augers — even if the employees were kept 7 feet away from the moving parts of the sweep auger.
Employers were faced with the option of accepting a citation and facing the risk of repeat citations (with penalties up to $70,000/violation); challenging the citations and incurring legal fees; or not emptying bins in an economical or efficient manner.