MORE than a month after Congress first blew the whistle on actions the Occupational Safety & Health Administration (OSHA) has taken against small grain farms, a top OSHA official said it has never been the agency's intent, practice or policy to regulate small grain farms but, instead, to comply with a long-standing rider that has been included in appropriations bills for nearly four decades.
In December, Sen. Mike Johanns (R., Neb.) rallied together 42 other members of the Senate to call on OSHA to update its guidance. At issue is a 2011 memo in which OSHA asserted that on-farm grain storage and handling were not part of farm operations.
Today, more than 300,000 farms have on-farm grain storage.
Jordan Barab, deputy assistant secretary for OSHA, said the memo was in response to the alarmingly high number of engulfment incidents that were occurring and was not intended to start inspection of grain activities that are an intrinsic part of the farming process. That year, OSHA sent letters to more than 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 2012 numbers dropped to 19 engulfments that resulted in eight fatalities.
Johanns first became aware of what he has called OSHA's overreach after family-operated Niobrara Farms wrote to Nebraska lawmakers to report that OSHA issued citations "for such things as failing to have a written plan to control fugitive grain dust" in grain storage bins that resulted in $132,000 in fines.
Barab could not comment extensively about the specifics of this case because it's in litigation, but he did note that the reason OSHA first went to the site was because the industry code, the self-selected industry code, listed it not as a farming operation but actually as a field and bean merchant wholesaler.
He noted that OSHA has been to "very few small farms over the last few years." He said OSHA is looking back over its records and hasn't found any citations that should not have been issued. "If we have, we will correct those," he added.
Making it right
The recently approved appropriations bill codified the past wording 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, the agency is "more than willing to address that confusion and modify that policy."
In doing so, he said OSHA intends to meet with the U.S. Department of Agriculture "fairly quickly" and revise the memorandum issued in 2011.
"We are very concerned about the confusion around this," Barab added.
OSHA will 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 incident in Illinois where two kids were killed at what was clearly a grain operation separate from the farm.
He also has asked compliance personnel in the field who 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 explained.
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' 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."
Editor's Note: Listen to an interview with Barab in the Jan. 27 "Feedstuffs in Focus" podcast online at www.Feedstuffs.com.