Digital Re-print -
July | August 2013
Sweeping changes to OSHA’s sweep auger
enforcement
www.gfmt.co.uk
Grain & Feed Milli...
A
fter years of confusion and frustra-
tion in the grain industry regarding
how to operate sweep augers
without running af...
bin following a policy in which an employer
requiring employees to maintain a minimum
distance of six feet from the sweep ...
inside a grain bin with an energized sweep
auger. OSHA reasoned that if the methods
explained in the September 2008 letter...
as a baseboard to create a new national
policy, the Enforcement Memorandum
is very similar to the ten sweep auger
safety p...
www.gfmt.co.uk
LINKS
•	 See the full issue
•	 Visit the GFMT website
•	 Contact the GFMT Team
•	 Subscribe to GFMT
A subsc...
Sweeping changes to OSHA’s sweep auger enforcement
Sweeping changes to OSHA’s sweep auger enforcement
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Sweeping changes to OSHA’s sweep auger enforcement

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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.

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Sweeping changes to OSHA’s sweep auger enforcement

  1. 1. Digital Re-print - July | August 2013 Sweeping changes to OSHA’s sweep auger enforcement www.gfmt.co.uk Grain & Feed MillingTechnology is published six times a year by Perendale Publishers Ltd of the United Kingdom. All data is published in good faith, based on information received, and while every care is taken to prevent inaccuracies, the publishers accept no liability for any errors or omissions or for the consequences of action taken on the basis of information published. ©Copyright 2013 Perendale Publishers Ltd.All rights reserved.No part of this publication may be reproduced in any form or by any means without prior permission of the copyright owner. Printed by Perendale Publishers Ltd. ISSN: 1466-3872
  2. 2. 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
  3. 3. 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 Grain&feed millinG technoloGy July - august 2013 | 31 grain silos hoppered silos Offices and Factory: Ctra. de Arenas km. 2,300 13210 Villarta de San Juan • Ciudad Real- Spain T: +34 926 640 475 • F: +34 926 640 294 Madrid Office: C/ Azcona, 37 • 28028 Madrid - Spain T: +34 91 726 43 04 • F: +34 91 361 15 94 www.symaga.com symaga@symaga.com FEATURE
  4. 4. 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
  5. 5. 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 Grain&feed millinG technoloGy July - august 2013 | 33 Westeel: Global Campaign 2013 Storage decisions can affect your operation for decades. That’s why so many companies around the world trust Westeel with their storage needs. Not only do we supply some of the most advanced storage products available, we support our products with the expert project leadership and sound engineering advice necessary to ensure that the decisions you make today continue to serve your company well for years to come. westeel.com |Canada (Home Office) +1-204-233-7133 |United States +1-701-280-2467 |Spain +34 91 216 14 97 The right storage solution starts with the right advice. MF22565-0313 22565 Westeel Global Campaign 2013 GFMT March.indd 1 2013-03-25 3:02 PM FEATURE
  6. 6. www.gfmt.co.uk LINKS • See the full issue • Visit the GFMT website • Contact the GFMT Team • Subscribe to GFMT A subscription magazine for the global flour & feed milling industries - first published in 1891 INCORPORATING PORTS, DISTRIBUTION AND FORMULATION In this issue: • Pig feed pelletizing technology • Feed focus Cattle • Exploring the challenge of single versus multi- enzyme dosing comparisons July-August2013 • Improving poultry health and production efficiency with probiotics • Aflatoxins in Europe: a new risk in maize production? • Sweeping changes to OSHA’s sweep auger enforcement first published in 1891 This digital Re-print is part of the July | August 2013 edition of Grain & Feed Milling Technology magazine. Content from the magazine is available to view free-of-charge, both as a full online magazine on our website, and as an archive of individual features on the docstoc website. Please click here to view our other publications on www.docstoc.com. To purchase a paper copy of the magazine, or to subscribe to the paper edi- tion please contact our Circulation and Subscriptions Manager on the link adove. INFORMATION FOR ADVERTISERS - CLICK HERE Article reprints All Grain & Feed Milling Tecchnology feature articles can be re-printed as a 4 or 8 page booklets (these have been used as point of sale materials, promotional materials for shows and exhibitions etc). If you are interested in getting this article re-printed please contact the GFMT team for more informa- tion on - Tel: +44 1242 267707 - Email: jamest@gfmt.co.uk or visit www.gfmt.co.uk/reprints

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