Grain Bin Safety Symposium

What Does OSHA’s Sweep Auger Letter of Interpretation Mean?

March 23-24, 2011Assumption, IL

Jess McCluerNational Grain and Feed Association

About NGFA More than 1,000

member companies representing:• Grain elevators,• Feed manufacturers,• Oilseed processors,• Flour mills,• Biofuels producers,

and• Many other related

businesses

Benefits of membership:• Contract arbitration

and access to NGFA Trade Rules

• Information services (bi-weekly Newsletter and E-Alert service)

• Professional development and training

• Representation in Washington, DC

National Grain and Feed Association

NGFA has been serving the industry for 115 years with the mission and purpose of:• Securing an

abundant and safe food supply

• Promoting free markets

Safety and Health

Occupational Safety and Health Administration• Sweep augers• Grain bin

engulfments• Increased

Inspections• Combustible dust• Fall protection

OSHA Sweep Auger Letter of Interpretation

OSHA Sweep AugerLetter of Interpretation

On 12/24/09 OSHA issued a letter pertaining to sweep auger operations within grain bins: www.osha.gov(Interpretations)• Prohibits an employee from working inside a bin

while an unguarded sweep auger is in operation• OSHA offered no acceptable procedures that

would allow a person to work inside a bin when an unguarded auger is in operation

What Does the Letter Mean? Until / unless modified, prevailing opinion and

supersedes previous documents. Each Region, Area Office and State Plan State

can and has been interpreting the letter differently.• OSHA has used this letter to issue citations in 2010.

NGFA has met with OSHA in October and continues to work with OSHA to review the December 24th letter and it’s impact on grain handling and processing.• Anticipate written communication from OSHA

regarding this situation early in 2011.

Sweep Auger Timeline September 30, 1996 – Following the promulgation of the Grain Handling

Standard’s technical amendment, OSHA issued an internal memorandum with an interpretation of 1910.272 (g) (1) (ii).

January 23, 2008 – Insurance representative sends letter to OSHA with questions about employees working in bins with operating equipment.

September 29, 2008 – OSHA issued a response letter titled, “Grain handlers and engulfment hazards; procedures for unguarded sweep augers.[1910.23(a)(5); 1910.272; 1910.272(e)(2); 1910.272(g)(1)(ii); 1910.272(g)(2)] , “ the Agency states “the standard (1910.272(g)(1)(ii)) is not intended to be prohibition against employees entering grain storage structures while machinery is running.” OSHA does not recognize 1996 memorandum.

October 15, 2008 – Insurance representative sends second letter to OSHA asking “Can an unguarded sweep auger be in operation (energized) in a grain bin while an employee is inside the bin?” Does not specifically identify what is meant by guarded or unguarded.

Sweep Auger Timeline (cont.) January 2009 – Industry is made aware of letter after it

is posted on OSHA public Web page.

August 2009 – Representatives from NGFA and Grain Elevator and Processing Society meet with OSHA to discuss the sweep auger issue.

December 24, 2009 – OSHA issued a letter to insurance representative stating that it is a violation of 1910.272 (g) (1) (ii) unless the employer can eliminate all hazards presented by an energized unguarded sweep auger. (Yet to be posted on OSHA public Web page).

Sweep Auger Timeline (cont.) February 22, 2010 – NGFA submits letter to OSHA

asking them to rescind December 24, 2009 letter and asks to schedule meeting to further discuss issue.

April 2010 – OSHA declines to meet with NGFA unless they identify specific parts of the December 24 the letter to discuss.

May 4, 2010 – NGFA submits letter to OSHA that points to several conflicts between OSHA’s statements in the Dec. 24th letter compared to its current standards. The NGFA also cited how previous correspondence between the agency and the NGFA regarding deenergization was not referenced in the Dec. 24 OSHA letter.

Sweep Auger Timeline (cont.) October 7, 2010 – Members of the NGFA Safety,

Health and Environmental Quality Committee meet with senior OSHA staff to discuss the issues raised in the May 4 letter and to provide and economic analysis of the letter’s current and future impact on industry.

Sweep Auger Issue

Senator Grassley (R-IA) also sent a letter

There are currently cases pending before federal OSHA offices challenging this policy

Sweep Auger Issue (cont.) Can OSHA do this?

• Inconsistent with the language in the standard and in the rulemaking record

• “Backdoor” rulemaking

No consideration for the practical implications• View of experts: “You are going to need a lot of

shovels and workers with strong backs”

• Economic impact could be substantial

Sweep Auger Issue ( cont.) A recent state plan decision addressed the

issue of unguarded sweep augers

The Judge held that the Company “established that it is not possible to affix guards to the sweep auger’s point of operation without rendering the sweep auger ineffective” and also “established that its location guarding made it highly unlikely that an employee would touch the sweep auger’s point of operation”

Sweep Auger Issue Having employees in the bin during sweep

auger violations does not violate the Grain Handling standard

• With a “ground level opening” (standard two-ring door), employees are permitted to be inside the bin while sweep auger is running as long as there is no engulfment hazard

Because this is a state plan decision it has no impact on federal OSHA or in other state-plan states

What Can I Do? Have effective safety and health program and

procedures. Review and analyze December 24th letter of

interpretation and make changes to sweep auger operation process as you interpret.

Be prepared to explain to OSHA why you have or have not made changes to current policy.

Look for alternatives• “No entry” sweeps• Effective Lockout Tagout system• Cyclone vacuum systems• Air augers

What Can I Do? (cont.) Prepare for inspections Establish a management team including:

• Contact person with OSHA on all aspects of the investigation

• Those individuals who will participate in the walk around

• May need legal counsel early on Do not accept citations without thinking

through the implications• The penalties may be small, but impact

on future liability may be significant

Federal OSHA OverviewIncreased Supervision of

State Plan StatesAt Least As Effective As State plan standards and enforcement must be at least as

effective as federal OSHA in providing safe and healthful employment to workers.

In order to operate its own plan, a state must enact an equivalent of the federal OSH Act and must use administrative and regulatory procedures to adopt its own standards, regulations and operating procedures, all of which must be updated within six months of any change in the federal program.

Federal OSHA OverviewIncreased Supervision of State Plan States (cont.)

Background Section 18 of the Occupational Safety and Health Act of 1970

(the Act) encourages States to develop and operate their own job safety and health programs.

OSHA approves and monitors State plans and provides up to 50 percent of an approved plan's operating costs.

States and jurisdictions that have complete programs covering both the private sector and state and local governments = 22

Iowa (since 1973) States and jurisdictions that have programs limited in coverage to

public sector employees = 5 Percent of workplaces covered by state plan states = 40%

Education and Training

Training• Safety, Health and

Environmental Compliance Conference, July 27-28, Kansas City

Education• “Grain Bin Safety:

Protection You and Your Family” NGFA and NCGA

safety training video • “Your Safety

Matters” NGFA and GEAPS

safety training DVD Available at

www.ngfa.org

Grain Bin Safety Symposium

Thank you!!

Jess McCluerNational Grain and Feed Association

202-289-0873jmccluer@ngfa.org