Over a month after Congress first blew the whistle on actions taken against small grain farms by the Occupational Safety and Health Administration (OSHA), a top official said the intent, practice or policy of the agency has never been to regulate small grain farms, but instead to comply with a long-standing rider included in appropriations bills for nearly four decades.
In December Sen. Mike Johanns (R-Neb.) rallied together with 42 other members of the Senate calling on OSHA to update its guidance. At issue is a 2011 memo where OSHA asserted that on-farm grain storage and handling was not part of farm operations. Today over 300,000 farms have on-farm grain storage.
Jordan Barab, deputy assistance secretary for OSHA, said the memo was in response to the alarmingly high number of engulfments that were occurring and not intended to inspect grain activities that are an intrinsic part of the farming process. That year OSHA sent letters out to over 13,000 grain facilities informing them of the high number of fatalities and grain engulfments and offered compliance assistance training and technical assistance.
In 2010, there were 57 engulfments resulting in 31 fatalities. But the 2011 campaign "saved lives" Barab said, noting that in 2012 fatalities dropped to 8 resulting from 19 engulfments.
Johanns first became aware of what he's called OSHA's overreach after Niobrara Farms family operation wrote to Nebraska lawmakers and reported that OSHA has issued citations "for such things as failing to have a written plan to control fugitive grain dust" in grain storage bins totaling $132,000 in fines.
Barab could not comment extensively about the specifics of this case because it's in litigation, but did note that the reason OSHA first went to the site was because the industry code, the self-selected industry code, put them not as a farming operation but actually as a field and bean merchant wholesaler.
He did say that OSHA has been to "very few small farms over the last few years." He added that OSHA is looking back over their records and haven't found any citations that should not have been issued. "If we have, we will correct those," he stated.
Making it right
The recently approved appropriations bill codified the past wording stating that prevents OSHA from expanding its regulatory oversight onto farms with fewer than 10 employees.
Barab said OSHA's practice has been fairly consistent over past administrations and if the policy is confusing, they're "more than willing to address that confusion and modify that policy."
In doing so, he said OSHA intends to meet with USDA "fairly quickly" and revise the memorandum issued in 2011.
"We are very concerned about the confusion around this," Barab added.
OSHA plans to look to USDA to offer advice on what post-harvest activities are "intimately related to farming activities and which ones aren't," Barab said. He cited a past fatality in Illinois where two kids were killed that was clearly a grain operation separate from the farm.
He's also asked compliance personnel in the field that may be looking at a small farm operation to discuss it first with the national office. "We do not want to go into places that are covered by the rider," he said.
Johanns said time will tell if OSHA is committed to following the law.
“I am pleased OSHA has indicated a willingness to revisit its policy of regulatory overreach on small farms, and I hope the agency is prepared to follow through,” Johanns said. “Stepping back in line with the law means that OSHA must honor Congress’s intent to protect family farms—including post-harvest activities. And it means OSHA must reverse its pursuit of fines on farms that meet the law’s standards."