Senators Challenge OSHA’s Attempts to Regulate Small Farm Grain Bins

Forty-three senators have strongly denounced OSHA’s attempt to regulate on-farm grain storage facilities, seeing it as an effort by OSHA to make an “end-run” around statutory law exempting family-run farms from OSHA regulations.

The Occupational Safety and Health Administration (OSHA), a branch of the Department of Labor, is tasked with enforcing the Occupational Safety and Health Act of 1970 (the Act), 29 U.S.C. Chapter 15. The Congressionally-stated purpose of the Act is to “assure safe and healthful working conditions for working men and women.” OSHA sets safety standards for employers and levies costly fines against those who fail to meet those standards.  Since 1976, “farming operations” that employ only family members or farms that employ 10 or fewer non-family employees have been specifically exempted from OSHA jurisdiction through an annual Farming Appropriations Rider.

On June 28, 2011, OSHA issued a memo declaring that if a small farm performs postharvest crop activities such as “crop cleaning, sun drying, shelling, fumigating, curing, sorting, grading, packing, and cooling,” the exemption does not apply to that activity. OSHA then declared, “OSHA has jurisdiction over grain handling operations.”[1]

This memo recently came under fire as OSHA has apparently stepped up its enforcement efforts against grain bins associated with small farms. Concerned senators have cited OSHA’s assessment of $132,000 in fines against a small Nebraska farm as an example of OSHA’s increased efforts. OSHA records reveal that in December of 2011, OSHA cited a small “grain storage facility” in Atkinson, Nebraska, with 16 safety violations for “exposing workers to a variety of hazards during ‘grain bin entry.’” Proposed penalties totaled $132,000.[2] According to Nebraska Senator Mike Johanns, this “grain storage facility” is a family farm, with one non-family employee, raising corn and soybeans.[3] No injuries had occurred at this facility.

In response to concerns about OSHA overreaching, Johanns and 42 Senate colleagues sent a bipartisan letter to Department of Labor Secretary Thomas Perez on December 20, 2013. The letter states with respect to the farming operations exemption, “It has come to our attention that OSHA is now interpreting this provision so narrowly that virtually every grain farm in the country would be subject to OSHA regulations.  OSHA’s interpretation defies the intent of Congress in exempting farming operations from the standards of the Occupational Safety and Health Act.”[4]

The letter goes on to request the Secretary (1) to direct OSHA to cease all enforcement actions inconsistent with Congressional intent, (2) issue guidance correcting its misinterpretation of the law, and (3) provide a list and description of regulatory actions taken against such farms since the June 2011 memo. The letter closes with a demand for a response by February 1, 2014.

OSHA has issued no response to date. No doubt the impact of OSHA continuing on its current course would be far reaching. We will keep you posted as this story develops.