OSHA goes against the grain; inspections and fining farms draws the ire of senators

Jan 10, 2014

Farmers who store grain could face inspections and scrutiny from the Occupational Safety and Health Administration despite a decades-long exemption, unless the U.S. Senate is able to work its will and make OSHA back off its regulatory change.

Sen. Mike Johanns (R- NE) is drawing attention to OSHA’s move to regulate on-farm grain bins. Saying, “Grain bins and family farms go together like the State Fair and 4-H,” Johanns became incredulous in mid-December over a potential $132,000 fine hanging over a Nebraska farm operation because of an OSHA inspection.

Johanns, a former U.S. agriculture secretary, authored a letter with 42 other senators to Labor Secretary Tom Perez on Dec. 20 demanding the agency stop inspecting family farms. Since 1976, Congress has exempted farmers from OSHA regulations if the farms employ fewer than 10 people and do not provide housing for temporary workers. The senators note OSHA’s memo on grain bins “is creating an artificial distinction in an apparent effort to circumvent the congressional prohibition on regulating farms.”

As Johanns described it in a column, “The agency has decided to ignore history and distort definitions to do an end-run around the law.”

OSHA’s regulatory stance changed with a memo in 2011 to field inspectors stating the agency could perform inspections at grain storage facilities. The memo stated that virtually every post-harvest activity could be inspected because much of the work is the same as a commercial grain elevator. Thus, anyone engaged in work such as “crop cleaning, sun drying, shelling, fumigating, curing, sorting, grading, packing and cooling” could thus be inspected.

The Nebraska case involves a farm near Atkinson that was inspected in June, 2011—20 days before OSHA administrators sent out their memo on grain operations. The inspection resulted in 22 potential safety and regulatory violations, of which three were classified as “willful”—violations with significantly higher penalties.

James Luers, an attorney in Lincoln wrote the entire Nebraska congressional delegation in early December to explain the issues with OSHA and the potential $132,000 fine facing his client. Luers pointed out in the letter that almost any farmer in Nebraska who stores grain would be open to OSHA investigations and violations.

“I think that got their attention and the next thing we knew Johanns was making a speech on the Senate floor and writing a letter,” Luers said. “That’s where it sits.”

Luers’ client operated C.O. Grain as a grain handling operation more than a decade ago, but the owner got out of that business and now is a partner in a farm operation, Niobrara Farms. When OSHA targeted grain-handling operations, inspectors went after Luers’ client. Luers told OSHA the agency didn’t have jurisdiction over the farm.

“They refused to recognize the agricultural exemption and they went forward with the same citation they had against C.O. Grain,” Luers said.

Luers said Niobrara Farms has several bins, but the capacity is not excessive. “They are just like any farm in Nebraska. They stored some grain.”

Niobrara Farms is now set for an administrative trial before an administrative judge. If the case sticks, Luers said, almost any farm in Nebraska could be inspected. “It just strikes me. Every farm in Nebraska stores grain anymore,” Luers said. “I guarantee they don’t have all of the things OSHA wants them to have in a grain-handling facility.”

OSHA maintains Niobrara Farms is not an average farm. OSHA’s press office stated in an email, “OSHA believes that in this case, the company involved was not a small farm, but rather a grain storage and retail operation geographically separate from the farm itself. Therefore, OS- HA did not violate the intent of the congressional rider.”

Updated on-farm storage data comes out next week, but U.S. farms have more than 13 billion bushels of storage capacity. Based on quarterly USDA numbers, farms in December stored more than 6 billion bushels of corn alone and likely also have at least 1 billion bushels of soybeans and 400 million bushels of wheat in storage, as well. Those figures are based on average USDA reports over the past two years.

OSHA argues the agency’s push to begin inspecting grain bins came after increased cases of grain entrapments and deaths. “OSHA launched an initiative to help prevent further fatalities by increasing outreach and enforcement.

OSHA sent letters to over 13,000 grain elevator companies informing them that these deaths must be prevented by following the common sense standards. OSHA also increased its enforcement of these standards across the country.”

OSHA added the increased inspections are having the desired effect. “These efforts were successful, and they saved lives. By 2012, the number of fatalities had dropped 74 percent from 31 deaths in 2010 to eight in 2012. The rate of overall entrapments also went down drastically from a high of 57 in 2010 to 19 in 2012.”

OSHA drops Ohio case

A pair of OSHA inspectors showed up at Scott Haerr’s north-central Ohio farm during the middle of harvest. They showed their badges and told Haerr they wanted to see how he stores grain. Haerr suspects the name of the farm, Haerr Grain Farms, probably caught their attention. The inspectors told Haerr they had authority because he had an employee who wasn’t a family member.

OSHA cited Haerr’s farm on three serious violations such as not having a hand rail for steps or having a protective guard on an old air compressor. OSHA fined the operation $5,600 initially. An informal conference with OSHA’s regional administrator was unsuccessful at waiving the fine and the regional director was not willing to back down from the memo.

“I had a feeling they were going to rely on that memo, and that was exactly the position they took,” said Haerr’s attorney, Kristi Wilhelmy. “During the informal conference, that was the position they took because he (Haerr) had at least one non-family employee, and that he had a grain storage facility. Based on that, my client was subject to OSHA inspections.”

So the Haerr farm filed a notice to contest the citation on Dec. 30. Later that same day, the regional administrator contacted Wilhelmy agreeing to withdraw the citation. Wilhelmy said she was told: “We knew how to cause a ruckus.”

Wilhelmy said she was told that the June, 2011 memo could be rewritten, but she is concerned about OSHA’s effort to segment different stages of a farming operation. For instance, the OSHA inspectors didn’t classify Haerr as a farm, but as a grain merchant.

“You can’t start to pick apart the farming operation and say, ‘If you are going to put this grain in a bin, then it’s no longer part of the farming operation,’“ she said. “That’s the whole point of raising grain is to sell it. Why are you making this artificial distinction and put parts of the farm into different categories?” She added, “Every farmer is a grain merchant at some point because they eventually sell their grain.”

The event made Haerr nervous about saying his storage capacity. “I don’t know if there is a limit where you get in trouble,” he said. “You know what I mean?” — Chris Clayton, DTN