OSHA issues Enforcement Memorandum providing guidance to the grain industry about safe sweep auger work practices - After years of confusion and frustration in the grain industry regarding how to operate sweep augers without running afoul of Occupational Health and Safety Administration (OSHA) regulations, OSHA has finally issued an enforcement policy for the US employers that identifies the conditions that must be met to allow employees back inside grain bins with operating sweep augers.
3. A
fter years of confusion and frustra-
tion in the grain industry regarding
how to operate sweep augers
without running afoul of Occupational
Health and Safety Administration (OSHA)
regulations, OSHA has finally issued an
enforcement policy for the US employers
that identifies the conditions that must be
met to allow employees back inside grain
bins with operating sweep augers.
Following a groundbreaking settlement of
an OSHA case against an Illinois grain company
that became a Final Order of the OSH Review
Commission in January 2013, federal OSHA’s
national office in Washington, DC issued an
Enforcement Memorandum on May 3, 2013
that clarifies what engineering and work prac-
tice controls are acceptable to OSHA to
eliminate or minimize the danger to employees
working around sweep augers inside grain
bins. Note that although the Enforcement
Memorandum offers guidance for employers
in the grain industry and lifts the outright ban,
the burden is high for employers, and OSHA
also signalled broader enforcement powers by
reiterating a policy that OSHA only needs to
prove potential employee exposure to estab-
lish its burden of proof.
Sweep augers
A sweep auger is a device used to help
empty the remaining grain inside of bins after
the bins are emptied as much as possible by
gravity flow. Sweep augers are horizontal
machines that attach to a pivot point in the
center of flat-bottomed grain bins, and travel
at very slow speeds in a circle around the
bins. The augers pull grains, by helical screw
blades called flighting, from the perimeter of
the bins towards floor sumps in the centres
of the bins, where the grain exists below the
floor of the bins on to conveying systems
outside the bin.
By design, sweep augers are typically
guarded from accidental contact on the top
and backside, but they cannot be guarded on
the front, where the flighting makes contact
with the grain. The front of the sweep auger
has exposed moving parts by necessity, as
the flighting must be able to contact the
grain to pull towards the centre sump. As
a result, workers entering a storage bin to
push or unjam a sweep auger, or to sweep
up grain missed by the sweep auger, may be
exposed to a hazard from the unguarded
moving parts.
The Grain Standard
The confusing legal landscape about the
permissible conditions for working with
sweep augers stems, in part, from the origi-
nal implementation of the Grain Handling
Standard (29 C.F.R. § 1910.272). The final
Grain Standard that was published in 1987
did not address the use of sweep augers or
the conditions in which an employee may
work inside a grain bin with an energized
sweep auger. However, the final rule includ-
ed the general statement 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 and formal interpreta-
tions by OSHA about this language, prima-
rily “which presents a danger” and “other
equally effective means or methods,” have
resulted in inconsistent enforcement by
OSHA in connection with sweep augers
over the years, but for the most part, OSHA
allowed the practice. A series of formal
OSHA Interpretation Letters beginning in
2008, however, changed that landscape.
OSHA’s sweep auger
Interpretation Letters
OSHA’s attention to sweep auger issues
in 2008 arose from a letter from an insur-
ance agent to OSHA requesting a formal
interpretation about working inside a grain
Sweeping changes to OSHA’s
sweep auger enforcement
OSHA issues Enforcement Memorandum providing guidance to the
grain industry about safe sweep auger work practices
by Eric J Conn, head of the OSHA Practice Group, Epstein Becker & Green, P.C., USA
Grain&feed millinG technoloGy30 | July - august 2013
FEATURE
4. bin following a policy in which an employer
requiring employees to maintain a minimum
distance of six feet from the sweep auger.
In a September 29, 2008 Interpretation
Letter from OSHA responding to the insur-
ance agent’s request, OSHA explained that
1910.272(g)(1)(ii) governed this scenario,
and concluded that employees were pro-
hibited from being inside grain bins with
energized sweep augers unless the employer
could demonstrate that appropriate protec-
tions were in place to prevent exposure
to the hazards of the moving machinery.
OSHA offered two (not so helpful) meth-
ods by which employers could comply: (1)
completely guarding the auger (including the
flighting that contacts the grain); or (2) using
a rope position system (i.e., a human leash)
to prevent employee contact with energized
equipment. A policy requiring employees
to remain at least six feet from the sweep
auger, according to OSHA, was not an “oth-
erwise equally effective means or method”
to satisfy 1910.272(g)(1)(ii).
The insurance agent sent a second
request to OSHA for further clarification,
explaining that a sweep auger could not
be guarded on the front and still func-
tion, and that the rope positioning system
OSHA suggested would be “extremely dan-
gerous”. OSHA responded with another
Interpretation Letter on Christmas Eve of
2009 explicitly barring employees from being
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FEATURE
6. inside a grain bin with an energized sweep
auger. OSHA reasoned that if the methods
explained in the September 2008 letter
were ineffective, then the Agency was “not
aware of any effective means or methods
that would protect a worker from the dan-
ger presented by an unguarded sweep auger
operating inside a grain storage structure.”
These industry leaders attempted to edu-
cate OSHA about safe methods of sweep
auger operation, but OSHA declined to avail
itself of industry resources that could explain
how grain handlers could safely operate
inside bins with sweep augers. Amidst the
confusing messages from OSHA, industry
leaders sought help from Congress. Two
congressmen submitted letters to OSHA
seeking to have OSHA step back from
the ban on bin entry with sweep augers,
but OSHA responded with two more
Interpretation Letters on May 16, 2011 and
February 16, 2012 reiterating the ban.
Enforcement
While the grain industry was trying
unsuccessfully to educate OSHA about
sweep augers, and waiting for clarifica-
tion from the agency about how they
could effectively operate sweep augers
with employees inside a bin, OSHA began
issuing citations to employers based on
its new ban on bin entries with energized
sweep augers.
Several of these citations were success-
fully challenged through judicial decisions, but
the decisions did not become binding prec-
edent on OSHA (one was in a state with its
own OSHA Program and the other was not
appealed to the OSH Review Commission).
Although OSHA was losing sweep auger
cases in litigation, the agency continued to
issue citations, leaving employers to face the
options of:
1. Accepting a citation and facing the risk
of repeat violations with penalties up to
US$70,000 per violation
2. Challenging the citations and incurring
legal fees
3. Not emptying bins in an economical or
efficient manner
A groundbreaking
settlement
Attorneys in Epstein Becker &
Green’s national OSHA Practice
Group represented a major grain
handler in Illinois that received one
of these sweep auger citations.
Fortunately, the OSHA area direc-
tor overseeing the inspection for
OSHA was uniquely knowledge-
able about sweep augers from his
personal experience in agriculture,
and was willing to work in partner-
ship with the employer to develop
a set of safety principles that would
satisfy the “equally effective means
or methods” language of the Grain
Standard.
Based on the employer’s safety
policies that kept employees out
of the zone of danger in the grain
bins, OSHA ultimately agreed to
withdraw all of the citations and
penalties, and the parties were
able to agree to settlement terms
that would provide guidance to
the entire industry about sweep
auger operations. The settlement
agreement incorporated a set of
ten sweep auger safety principles,
which if satisfied, would allow an
employee to work inside a grain
bin with an energized sweep auger.
Furthermore, the settlement agree-
ment included a specific sweep
auger policy that detailed engineer-
ing and administrative controls the
employer intended to use at its
facilities. The ten sweep auger safe-
ty principles and the specific sweep
auger policy were approved at the
area office by regional administra-
tor and by OSHA’s national office
level.
OSHA’s sweep auger
Enforcement Memorandum
A few months after these OSHA set-
tlements became Final Orders of the OSH
Review Commission, the OSHA director of
the Directorate of Enforcement Programs
issued an Enforcement Memorandum to
all regional administrators and state plans
designees explaining the agency’s new
Sweep Auger Enforcement Policy, which
essentially mirrored the Ten Sweep Auger
Safety Principles laid out in the cases set-
tled in Illinois. Finally, after years of industry
confusion and frustration, OSHA’s new
official policy again permitted employees
to enter grain bins with operating sweep
augers, provided the employer implements
the engineering and administrative controls
outlined in the Ten Sweep Auger Safety
Principles.
Table 1 shows the list of the ten engi-
neering and work practice principles that
OSHA requires employers to implement.
Using the Illinois Settlement Agreement
Table 1: Ten engineering and work practice principles that OSHA requires employers to imple-
ment
1. Workers may not enter a grain bin until after issuance of a bin entry permit, certifying that
the precautions contained in paragraph § 1910/272(g) have been implemented, unless the
employer or the employer’s representative (who would otherwise authorize the permit) is
present during the entire operation.
2. Before any worker enters the bin to either set up or dig out the sweep auger, the subfloor
auger and the grain entry points must be deengergized and locked-out.
3. Before operation of the sweep augur, the grate/guard on the subfloor auger must be in
place and secured.
4. Employees may not walk on the grain where the depth of the grain presents an engulfment
hazards.
5. All sweep augers (including portable sweep augers) must be provided with guards that
protect against contact with moving parts at both the top and back areas. The only
unguarded portion of the sweep auger should be the front point of operation.
6. An observer, in accordance with § 1910.272(g), must always be positioned outside the
storage bin monitoring the activities of workers inside the bin.
7. If a worker enters the bin while the sweep auger is energized, the employer must utilize
engineering controls within the grain bin to prevent the worker from coming into contact
with the energized sweep auger. Acceptable engineering controls may include:
a. A sweep auger equipped with an attached guard that prevents the worker’s contact
with the unguarded portion of the auger, in accordance with 29 CFR 1910 Subpart O,
Machinery and Machine Guarding.
b. A sweep auger equipped with a control mechanism, such as a dead-man switch or other
similar device, which will allow for the sweep auger’s operation only when the operator is
in contact with the device. If this method is utilized as a means of worker protection, the
worker must be positioned at least seven feet from the energized auger at all times.
c. Any workers other than the operator of the sweep auger present in the storage bin while
the sweep auger is energized must also be protected in a manner that keeps them out of
the zone of danger. For example, this may include the installation of guardrails or catwalks
that prevent workers from entering the area within the path of the auger.
8. The auger is provided with a positive speed control mechanism or bin stop device that
prevents its uncontrolled rotation around the bin.
9. Workers may not use their hands, legs, or other similar means to dislodge or otherwise
directly manipulate the sweep auger while it is energized.
10. If maintenance/adjustments are necessary to the sweep auger, the auger must be
unplugged, with the person making the adjustments maintaining the control of the plug, or
locked-out in accordance with lockout/tagout procedures.
Grain&feed millinG technoloGy32 | July - august 2013
FEATURE
7. as a baseboard to create a new national
policy, the Enforcement Memorandum
is very similar to the ten sweep auger
safety principles that were approved by
OSHA under the Settlement Agreement.
However, there are a few key differences
worth noting:
Engineering controls and
additional entrants
The Enforcement Memorandum focus-
es entirely on engineering controls that
employers could use to protect employees
working inside grain bins with energized
sweep augers, such as guards, control
mechanisms, guardrails, catwalks, and
sweep auger safety handles. In contrast,
the Illinois settlements talked expressly
about a combination of both engineering
and administrative controls, and provided
examples of administrative controls that
could be used to help protect employees
operating energized sweep augers. For
example, under the Illinois settlement, use
of a seven-foot long handle with a dead
man switch at the handle in conjunction
with a notice barrier (but not a solid guard
rail) around the center sump, was accepta-
ble. Under the Enforcement Memorandum,
engineering controls at both locations are
mandatory; i.e., cones, ropes, painted lines,
etc., are not adequate to keep employees
out of a zone of danger.
Guarding on augers
Adequate guarding on the sweep
auger itself has been a tricky issue for
OSHA for quite some time. As men-
tioned earlier, OSHA stated in its 2008
Interpretation Letter that industry could
comply with 1910.272(g)(1)(ii) if the
machine was completely guarded, includ-
ing guarding on the front of the machine.
Such guarding, however, renders the
auger inoperable. The Enforcement
Memorandum backs away from that
extreme position, but still requires more
guarding than the Illinois settlements
required. Whereas the Illinois settle-
ments required the standard guarding
provided by the manufacturer of the
auger, the Enforcement Memorandum
requires full guarding and covers on the
tops and the backs of all sweep augers,
leaving the front point of sweep auger as
the only unguarded portion.
Potential exposure is enough to
issue citation
While explaining the enforcement
procedures under Section 1910.272(g)
(1)(ii), OSHA stated that a violation of
an OSHA standard can be based on
actual exosure or potential exposure.
Under the Sixth Circuit’s holding in
All Erection & Crane Rental Corp.¸ No.
11-4242, 2012 WL 6028627 (6th Cir.
Dec. 5, 2012), OSHA needs to prove
only that an employee had access to
the violative condition and that it was
reasonably predictable that employees
would be within the zone of dan-
ger. Employers should be wary of this
enforcement policy because it grants
OSHA greater latitude to issue citations,
and could potentially make it easier for
OSHA to establish its case before the
Review Commission.
Conclusion
OSHA’s recent Sweep Auger
Enforcement Memorandum is a positive
step for employers in the grain indus-
try. After years of struggling to educate
OSHA about sweep augers, employers
now have reasonable guidance on how
OSHA expects employers will operate
energized sweep augers with employees
inside grain bin. Employees are permitted
back inside bins without locking and tag-
ging out augers, but only if the employer
ensures that it protects its employees
from the dangers and potential dangers
of the sweep auger.
More InforMatIon:
Website: www.ebglaw.com
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