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.

Sweep Augers

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

By Eric J. Conn, Head of the OSHA Practice Group

Back in September, we posted an article critiquing OSHA’s Severe Violator Enforcement Program (“SVEP”) in general, and the newly announced “exit criteria” in particular.  Since that time, in the beginning of October, OSHA updated its embarrassing SVEP Log that it maintains for public consumption

Back in March we answered five frequently asked questions related to OSHA inspections.  We received a lot of positive feedback about that post and several requests to address additional questions.  Following up on that feedback, we will be adding additional FAQ posts as a regular feature of the OSHA Law Update Blog.  In addition to

By Eric J. Conn, Head of the OSHA Practice Group

On June 18, 2010 OSHA replaced its much-maligned Enhanced Enforcement Program (EEP) with a new and equally problematic initiative called the Severe Violator Enforcement Program (SVEP).  The SVEP is intended to focus OSHA’s enforcement resources on those employers whom OSHA believes demonstrate indifference to their OSH Act obligations by committing certain types of violations, including:

  • Any violation categorized as “Egregious”;
  • One or more Willful, Repeat or Failure-to-Abate violations associated with a fatality or the overnight hospitalization of three or more employees;
  • Two or more Willful, Repeat or Failure-to-Abate violations in connection with a high emphasis hazard (generally speaking, the subjects of OSHA’s special emphasis programs, including falls, amputations, grain handling, etc.); or
  • Three or more Willful, Repeat or Failure-to-Abate violations related to Process Safety Management (prevention of the release of a highly hazardous chemicals).

According to an attorney with OSHA’s Solicitor’s office, employers are not added to the SVEP immediately upon receipt of citations meeting these criteria, but rather, are deposited in the Program within fifteen working days of receipt of the citations upon either a settlement at an Informal Settlement Conference, or the filing by the employer of a notice of contest challenging the validity of the citations.  More than two-thirds of SVEP cases are contested by the cited employer, and of the 200+ contested SVEP cases, nearly half of those contests remain open today.  As a result, some employers have been on the list for more than two years despite OSHA not proving that the employer violated the law at all, let alone in a way that meets the extreme qualifying criteria of the SVEP.  The constitutional due process implications of the SVEP are glaring.

Once an employer is added to the SVEP (again just based on unproven allegations), the company is immediately subject to the punitive elements of the Program, including mandatory follow-up inspections at the facility where the SVEP-qualifying citations were issued, as well as at sister facilities throughout the enterprise.  The issuance of SVEP-qualifying citations also comes with a heavy dose of public shaming by the Department of Labor.  Specifically, with every SVEP citation comes a public press release issued by OSHA, which now includes an inflammatory quote from a high-ranking OSHA or Department of Labor representative about the employer.  The Assistant Secretary of Labor for OSHA and his senior staff refer to these press releases as a campaign of “Regulation by Shaming.”  The SVEP press releases and an embarrassing public log of all employers in the SVEP are available on OSHA’s website.

The final problematic element of the SVEP has always been the manner in which employers can (or cannot) be removed from the Program once they get in.  For more than two years, OSHA operated the SVEP without providing employers any way out of the Program, other than by eliminating the underlying SVEP-qualifying citation through the multi-year contest process or persuading OSHA to withdraw the qualifying citations in a settlement.  After much clamoring from industry, OSHA finally released a press release summarizing a memorandum from the Director of Enforcement Programs to the Regional Administrators on August 16, 2012, which set forth a series of removal criteria.

The memo provided a framework for getting out of SVEP, but the extremely harsh removal criteria provide little relief to employers.  The memo explains that:

“[A]n employer may be removed from the SVEP after a period of three years from the date of final disposition of the SVEP inspection citation items. Final disposition may occur through failure to contest, settlement agreement, Review Commission final order, or court of appeals decision.”  Of course, it is not as easy as just waiting those 1095 days from a Final Order.  Employers must have also “abated all SVEP–related hazards affirmed as violations, paid all final penalties, abided by and completed all settlement provisions, and not received any additional Serious citations related to the hazards identified in the SVEP inspection at the initial establishment or at any related establishments.”

If employers fall short of any of these requirements, they will have to wait an additional three years to be considered for removal.  Even if the employer does meet all the criteria, removal from SVEP is not guaranteed.  In all cases with the exception for those involving corporate-wide settlements, the Regional Administrator has the final say as to whether an employer is removed from the program.  That discretionary decision is based on vague, undefined factors related to follow-up inspections and enforcement data.  Employers who agreed to corporate-wide settlements are reviewed for removal by the Director of Enforcement Programs (“DEP”) in OSHA’s National Office.
Continue Reading

By Eric Conn, Head of the OSHA Practice Group

We recently had an article published by the Washington Legal Foundation entitled “OSHA Continues Trend of Informally Imposing New Rules.”  The article expanded on an earlier post here on the OSHA Law Update Blog regarding OSHA’s attempts to circumvent Formal Notice and Comment

By Eric J. Conn, Head of the OSHA Practice Group

We recently authored an article for Feed & Grain magazine entitled “When OSHA Comes Knockin’.” The article explains why employers in the grain industry need to be prepared for an OSHA inspection, and outlines steps they should take to prepare for and

This week, Washington Legal Foundation published an article  regarding OSHA’s New Enterprise-Wide Approach to Enforcement, authored by EBG attorneys Eric J. Conn and Alexis M. Downs.  The article expands on a February 2012 post entitled “Enterprise Enforcement: OSHA’s Attack on Employers with Multiple Locations,” here on the OSHA Law Update Blog.

The gist of

Late last year, I delivered a keynote address to the National Grain & Feed Association’s (NGFA) annual Country Elevator Conference regarding:

  1. Why it is important for grain handlers to prepare now for an OSHA inspection;
  2. What to do now to prepare for an OSHA inspection; and
  3. How best to manage an OSHA inspection once