OSHA clarifies grain bin regs

The air is crisp, combines are humming, and grain is flowing. As farmers know, this beautiful time of year marks a heightened danger. Farming is a high-risk occupation, and education regarding safety is crucial. Yet, costly regulatory activities aren’t always the answer. This tension recently played out with respect to small-farm grain operations.

OSHA clarifies grain bin regs

The air is crisp, combines are humming, and grain is flowing. As farmers know, this beautiful time of year marks a heightened danger. Farming is a high-risk occupation, and education regarding safety is crucial. Yet, costly regulatory activities aren’t always the answer. This tension recently played out with respect to small-farm grain operations.

Congress tasked the Occupational Safety and Health Administration with ensuring “safe and healthful working conditions.” OSHA sets safety standards for employers, conducts on-site inspections and levies sometimes costly fines against violators.

OSHA tests its limits

Since 1976, “farming operations” employing only family members, or 10 or fewer nonfamily employees have been exempted from OSHA enforcement activities through an annual Farming Appropriations Rider. Thus, while farms are technically still subject to OSHA rules and regulations, OSHA is not allowed to spend money to conduct enforcement activities against these exempt operations. The limits of this restriction, however, were recently tested.

On June 28, 2011, OSHA issued a memo declaring if a small farm performs postharvest crop activities such as “crop cleaning” or “cooling,” the enforcement exemption doesn’t apply to that activity. The memo said, “OSHA has jurisdiction over grain handling operations.”

OSHA then began stepping up its enforcement efforts against grain bins associated with small farms. In December 2011, OSHA cited a small “grain storage facility” in Atkinson, Neb., with 16 safety violations for “exposing workers to a variety of hazards during ‘grain bin entry.’ ” Proposed penalties totaled $132,000. According to published reports, U.S. Sen. Mike Johanns of Nebraska stated this “grain storage facility” was a family farm with one nonfamily employee. No injuries had occurred at the facility.

Citing concerns about OSHA overstepping its jurisdictional authority, Johanns and 42 Senate colleagues sent a bipartisan letter to the DOL on Dec. 20. The letter asserted OSHA was “now interpreting [the small-farm exemption] so narrowly that virtually every grain farm in the country would be subject to OSHA regulations.” The letter stated “OSHA’s interpretation defies the intent of Congress in exempting farming operations from the standards of the Occupational Safety and Health Act.”

In response, OSHA withdrew the controversial 2011 memo in February, and on July 29 issued a “Policy Clarification on OSHA’s Enforcement Authority at Small Farms.” This memo, which expressly supersedes the 2011 memo, says “crop farming operation activities” include “storing, fumigating and drying crops grown on the farm.” Thus, the memo clarifies that “an exempt small farm would not become subject to OSHA enforcement simply because, for example, it stores its own grain on the farm.” In other words, grain bins storing grain grown on the farm would not be subject to OSHA enforcement jurisdiction.

Key Points

OSHA clarifies which farms can be inspected for grain safety practices.

Safety regs on small farms questioned after OSHA issued 2011 memo.

OSHA admits memo had “confusing language” as to exempt farms.

Who is exempt from regulation?

Conversely, however, the memo specifies if an employer performs activities on a small farm that are not related to farming operations and are not necessary to gain economic value from products produced on the farm, those activities are not exempt from OSHA enforcement. For example, if an otherwise exempt small farm stores and sells grain that was grown on other farms, the farm would not be exempt from OSHA enforcement.

While causing a stir, the 2011 OSHA memo was reportedly issued in response to a record number of fatal grain bin entrapments in 2010 (about 30). While a small farming operation may not be subject to OSHA inspections and reporting requirements, it must follow safety precautions to avoid these tragic results.

Chuck Schwab, an ISU ag engineering professor specializing in farm safety, says most grain bin accidents occur due to moisture, spoilage or improper grain conditioning.

When grain conditions are poor, the prevalence of two frequent grain bin hazards — flowing grain and collapsing bridged grain — increases.

Although most farmers know not to enter a grain bin when the auger is running, repeated efforts to break up an obstruction are sometimes fruitless. In such a case, farmers must resist the temptation to conduct troubleshooting inside of the bin with the auger on. This decision may be fatal because a person can be sucked into flowing grain in a matter of seconds. Most victims of grain bin accidents die because there is little or no time to rescue the worker.

The second primary grain bin hazard is the collapsing bridge. High moisture, mold or freezing temperatures can seal kernels together, forming a bridge at the top of the bin. If a person steps onto that bridge of grain, the surface collapses, leading to entrapment. The best defense against the collapsing bridge, Schwab explains, is to know the history of your grain bin. If grain has been unloaded from the bin, but the top surface hasn’t changed, there is likely a collapsing bridge danger.

Don’t take shortcuts

Schwab cautions farmers against taking shortcuts, even if time is tight. Most fatalities occur in years when grain is going into the bins moist, often after a late harvest. The worst grain bin disasters in Iowa occurred during a three-month period in late 1992 and early 1993. It had been a difficult harvest, and grain had gone into bins in much-wetter-than-usual conditions. Workers were challenged in getting the grain out and took risks they wouldn’t normally take. Ten people died. Schwab also reminds farmers to be vigilant about keeping children away from grain bins.

Careful attention to safety measures, regardless of government enforcement efforts, saves lives.

Tidgren is staff attorney for the Center for Agricultural Law and Taxation at Iowa State University. Visit www.calt.iastate.edu for information on legal issues, court decisions and regulations related to agriculture.

This article published in the October, 2014 edition of WALLACES FARMER.

All rights reserved. Copyright Farm Progress Cos. 2014.

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