FARGO, N.D. -- Grain elevator operators are operating in a gray area by using automated bin sweeps, which are common in the industry, according to an expert on employee safety law.
The issue has been in limbo since 2008, when an insurance company sent a letter to the Occupational Safety and Health Administration, requesting an interpretation on how employers can have employees in grain bins while a sweep auger is energized and working, says Eric Conn, a Washington, D.C., attorney, speaking to the North Dakota Grain Dealers annual convention last week.
Initially, OSHA said it was OK if there were adequate precautions in place to prevent employees from contacting the moving parts of the sweep auger, Conn says.
A follow-up request for an interpretation from the Obama administration came back less favorable and quite confusing, Conn says. "Basically they said employees can't be in a bin with an energized, unguarded sweep auger. They basically said that 'all points' had to be guarded, even the points doing the job. But if it's guarded it's not going to sweep, it's not going to do its job. Basically, the interpretation is that the employee can't be in the bin at all when you have an energized sweep auger. This has huge practical and economic consequences."
Companies and associations are working to clarify this and get it changed, Conn says. "Right now, that is the active, formal interpretation of the agency. You have to be careful how you manage this situation. There are cases where citations have been issued and challenged."
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Maryland's state safety inspection agency recently found that it was legal to continue allowing sweep augers to work. "If you had a good guard in place, and had a good administrative program in place," those employees could be in the bin as long as they are "kept out of the zone of danger."
"Right now the federal interpretation of OSHA is contrary to that, and different than how the industry has operated for years," Conn said.
