OSHA Games the System to Target Small Farmers
Jan 02, 2014
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. Oftentimes, there is daylight between the two. Using vagaries to beat the system is one of the primary reasons why attorneys bear the brunt of a disproportionate share of profession-related jokes.
When it comes to enforcement against small farming operations, OSHA, can be rightly criticized for violating the spirit of the law and indulging in extreme 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 small 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...
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 small farms, OSHA instead sought out means to get around this provision and they found one. Instead of labeling small 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. OSHA has said as much in their enforcement guidance on how to circumvent Congress’ prohibition on enforcing against small farms. Specifically, OSHA notes that any post-harvest activities that take place on a small farm are not covered by the Congressional exemption.
Adopting this approach, OSHA has started to flex its muscles beyond the farm gate. One example is Niobrara Farms in Atkinson, Nebraska. This operation, which has only one employee who is not a family member, was recently visited by an OSHA inspector and fined $13,000 for various violations, including failure to have a written plan to control fugitive grain dust. The operation did not have such plans in place in accordance with OSHA regulations because the farm viewed itself as, well, a farm – one that was exempt from OSHA enforcement. Fortunately, the Niobrara Farms took a stand and is currently challenging the enforcement action before an administrative law judge. The outcome of this challenge will likely determine whether OSHA will continue to exploit this loophole that it has fabricated.
Farming is a dangerous occupation. We all likely know someone that has died or become disfigured in a farming accident. My mangled right ring finger serves as a personal daily reminder for me to be on the lookout for potential hazards. However, although the business of growing and harvesting food and fiber is inherently dangerous, it is no excuse for a federal agency to seek a loophole around a Congressional decree in order to pester small farmers and hand out "paper" violations. OSHA should stick to dealing with the worker safety issues under its jurisdiction instead of focusing on creative ways to manipulate the law.
John Dillard is an attorney with Olsson Frank Weeda Terman Matz P.C. (OFW Law), a Washington, DC-based firm that serves agricultural clients and clients with issues before federal and state courts, EPA, FDA, USDA, and OSHA. John focuses his practice on agricultural and environmental law. He occasionally tweets at @DCAgLawyer. This column is not a substitute for legal advice.