There is frequent tension between the spirit of the law versus the letter of the law. Obeying the "spirit of the law" means following the intent of those who drafted it. Following the "letter of the law" means following the law as written—verbatim. Often, there is daylight between the two.
When it comes to enforcement against farming operations, OSHA can be rightly criticized for violating the spirit of the law and indulging in artistic license when it comes to interpreting the letter of the law. Here is how: Every year, Congress includes what is known as an "appropriations rider" into the legislation that funds OSHA. The rider explicitly instructs OSHA to not engage in enforcement activities against farms. The legislation reads:
... none of the [OSHA] funds appropriated under this paragraph shall be obligated or expended to prescribe, issue, administer, or enforce any standard, rule, regulation, or order under the Act which is applicable to any person who is engaged in a farming operation which does not maintain a temporary labor camp and employs 10 or fewer employees...
A regulatory loophole. Pretty straight forward, right? The average person on the street would read that and assume Congress has clearly made farms off-limits for OSHA enforcement. But the average person on the street is not an OSHA attorney. Instead of reading the legislation to mean that OSHA cannot enforce against farms, OSHA instead sought out means to get around this provision—and they found one. Instead of labeling grain farms for what they are, OSHA has begun to view these operations as "grain-handling facilities."
You have read that correctly. If you own land, plant seeds, harvest a crop, and place all or some of that crop into grain bins for storage and drying, you are not only a farmer; you are also a grain-handling facility operator and are subject to OSHA regulations pertaining to such facilities. Specifically, OSHA views any post-harvest activities on a farm as not covered by the Congressional exemption.
Adopting this methodology, OSHA has started to flex its muscles beyond the farm gate. Niobrara Farms in Atkinson, Neb., was recently visited by an OSHA inspector. The operation, which has only one employee who is not a family member, was fined $132,000 for various violations, including failure to have a written plan to control fugitive grain dust. Because the farm viewed itself as, well, a farm (one that was exempt from OSHA enforcement), the operation did not have such plans in place in accordance with OSHA regulations. Niobrara Farms is currently challenging the enforcement action before an administrative law judge. The outcome will likely decide whether OSHA continues to inspect and enforce against grain farmers.
In light of the controversy caused by enforcement action, OSHA has changed its tone on this issue by withdrawing a guidance document on farm enforcement. However, OSHA has yet to change its approach.
A need for improved safety. While many farmers are frustrated at what they view as an overstep in authority, OSHA is not coming out of left field.
On-farm grain bins are a major source of danger on farms. According to a 2012 Purdue University Extension report, grain entrapment incidents have steadily increased in the past 10 years. From 2007 to 2012, 102 farm workers died in grain entrapment accidents. About 70% of these entrapment incidents occurred at facilities that qualify as "small farms."
Adding to this danger, our national on-farm grain storage capacity has increased from 5.4 billion bushels in 1978 to 12.8 billion bushels in 2011.
Compliance requirements. Whether Congress intended OSHA to regulate farms or not, it appears to be doing so. Your operation might need to have a written plan to address safety hazards, fugitive grain dust and a permit system for workers who are allowed to enter grain bins and silos, in order to comply with OSHA regulations. If you have additional questions, consult your attorney.
This column is not a substitute for legal advice.
- March 2014