Baise: OSHA's grain bin gambit: Is it legal?

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Gary Baise On July 16, 2007, Richard E. Fairfax, OSHA's Director, Directorate of Enforcement Programs, wrote to a firm in Baton Rouge, La. The firm had asked if "The Appropriations Act exempts small farming operations from enforcement of all rules, regulations, standards or orders under the Occupational Safety and Health Act."

It also asked if a farming operation is exempt from all Occupational Safety and Health Act activities if it employs 10 or fewer individuals.

Mr. Fairfax said, "Under OSHA's current appropriations law, OSHA is not allowed to spend any of the funds appropriated to enforce any standard, rule, regulation, or order…" if the farming operation employs 10 or fewer individuals. The letter also says "this letter constitutes OSHA's interpretation of the requirements discussed."

Federal officials set sights on grain storage inspections – and fines.

Now fast-forward more than six years later. On Jan. 2, 2014, the Wall Street Journal wrote an editorial describing how OSHA inspectors are now showing up on farms that have fewer than 10 employees, to inspect and regulate grain storage bins and fine farmers if necessary.

U.S. Sen. Mike Johanns, R-Neb., and other senators say OSHA's activities are "absolutely incredible, absurd and a blatant overreach in violation of the law."  

Maybe. Maybe not. Read on.

On June 28, 2011, the same Mr. Fairfax is listed on a memorandum which says OSHA has authority to conduct enforcement activities on farms that have grain storage facilities.

His memo defines a farming operation as meaning "…any operation involved in the growing or harvesting of crops, the raising of livestock or poultry, or related activities conducted by a farmer on sites such as farms, ranches, orchards, dairy farms or similar farming operations."

The OSHA memo claims that these activities are listed under the SIC code of 01 and are provided an enforcement exemption.

OSHA  says grain storage inspection and enforcement is covered under SIC code 0723, which includes farms "…engaged in performing services on crops, subsequent to their harvest, with the intent of preparing them for market or further processing." OSHA says that corn drying as well as grain drying and fumigating are covered under SIC 0723, not SIC code 01 or 02. (The senators may want to check their facts.)

OSHA also says that grain handling operations are not covered by the exemption because it is not a core agricultural operation such as growing and harvesting crops. (I suspect most farmers would disagree with this assertion.)

OSHA concludes, saying "…as none of the Appropriation Rider restrictions would apply, OSHA can perform all enforcement activity regardless of the size of the employer." 

There is more fodder for OSHA. According to Purdue University, 660 farmers and workers have suffocated in grain bins since 1964. Also more than 220 teens, 18 years and younger, have died in grain bin accidents since 1964. In 2010, there were 51 accidents involving grain bins and 26 people died.

Burgeoning Bin Capacity
One reason OSHA may be looking at on-farm storage is not only the deaths, but in 1978 there was 5.4 billion bushels of storage on U.S. farms. The last USDA data I could find shows that U.S. "on-farm storage capacity totaled to 12.8 billion bushels on December 1, 2011." USDA data also describes Iowa leading all states with 2.05 billion bushels of on-farm storage capacity followed by Illinois with 1.6 billion bushels.

Purdue University's Agricultural Safety and Health Program has been documenting grain entrapment cases in the U.S. and it says there have been over 900 fatal and non-fatal entrapment cases since 1964. The study says "No fewer than 27 fatal and non-fatal grain entrapments occurred in 2011 on farms and commercial grain handling facilities." This is a "47% decrease in entrapments over 2010 when 51 entrapments were documented."

The study goes on to point out that "since 2002, however, the five-year average has increased steadily back to 29.2 incidents per year in 2008, 32.0 in 2009 and 36.0 in 2010."

OSHA May Have an Argument
The senators may want to read their own legislative language and OSHA's before getting too far out on a limb on this issue. Also, where have they been since June 28, 2011?

You may want to read the June 28, 2011 OSHA memorandum if you have on-farm grain storage. The memo to regional administrators is from Mr. Fairfax and Thomas Galassi and is titled "OSHA's Authority to Perform Enforcement Activities at Small Farms with Grain Storage Structures Involved in Postharvest Crop Activities (SIC 0723/NAICS 115114).

You may conclude that OSHA's activity may not be as "absurd" and "blatant" as our lawmakers suggest.

Gary H. Baise is a principal at OFW Law (Olsson Frank Weeda Terman Matz P.C.). This article first appeared in Farm Futures magazine. The opinions presented here are expressly those of the author. For more information, go to www.OFWlaw.com.


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averageman    
nebraska  |  February, 02, 2014 at 09:10 PM

The definition includes the adjective "primary". That raises the question that many farms store grain at one location which may have been grown on leased ground at another location. Are all premises covered by the umbrella "grain farm" which is exempted by the appropriation bill and the OSHA memo?


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