OSHA backs off small farm target

The farm world took a lesson from the biblical David and slew the giant U.S. Department of Labor.

Earlier this month, the labor department’s Occupational Safety and Health Administration (OSHA) backed off its previous enforcement directive regarding on-farm grain storage, and emphasized that farms with 10 or fewer employees are exempt from OSHA inspection or enforcement activities.

Some background is in order: 2010 was a deadly year, with 57 reported cases of people entrapped by grain. Thirty-one of those individuals died — including a 14- and 19-year-old in a single incident in Illinois. It was the highest number of grain storage-related fatalities in a year since 1964.

As a result, OSHA launched a prevention initiative through industry outreach, education and enforcement. A memorandum issued June 28, 2011, was part of that initiative, and subsequently led to a more narrow interpretation of what was exempt. Basically, farms with on-farm grain storage, which just about every farm does these days, were being recategorized as commercial grain handlers.

Next thing you know, OSHA inspectors were visiting grain farms, including at least one here in Ohio, and issuing citations and fines.

If you pay dues to Farm Bureau or a commodity group, you got several years’ return on that investment. If you’re not a member, you owe those farm groups.

Because it was the involvement of the Ohio and Nebraska Farm Bureaus, after OSHA inspections on farms in these states, that triggered more national attention, and ultimately a Dec. 20 letter from U.S. Sen. Mike Johanns and 42 other senators, including Ohio’s Rob Portman and Pennsylvania’s Pat Toomey, to Department of Labor Secretary Thomas Perez that questioned OSHA’s over-reaching enforcement.

On the House side, the Committee on Education and the Workforce sent a letter Jan. 14 to David Michaels, assistant secretary, OSHA, asking the 2011 guidance be withdrawn, as did 83 House members on Jan. 28.

In rather speedy fashion, the labor department responded Feb. 10, in the form of a letter from Brian Kennedy, assistant secretary for its Office of Congressional and Intergovernmental Affairs, that said the agency was withdrawing the contentious 2011 memo.

“The Department takes seriously the congressional concerns raised in your letter and intends to fully comply with the small farms exemption,” the letter states.

Kennedy also wrote that “to ensure all OSHA inspectors clearly understand OSHA’s policies and proper authority… DOL will issue new guidance after consulting with the U.S. Department of Agriculture and with organizations representing farmers.”

The June 28, 2011, memo has been removed from the department’s website.

This whole debacle illustrates the creative ways regulatory agencies find to circumvent or broaden their legal authorities. Bradford Hammock, who used to work in the labor department’s Office of the Solicitor, testified in a House hearing Feb. 4 that these “subregulatory” actions “exist at a lower level in the hierarchy of activities, but still have significant impacts.

“Subregulatory actions are substantive changes without transparency, input from affected parties, or accountability.”

The slippery slope of power in action. Thank goodness, this one got stopped before it became an avalanche.

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While this effort to stave off unnecessary regulation had a happy ending, I can’t forget the original trigger: farm fatalities.

Regardless of the size of a business or farm, grain entrapment deaths do happen. And the most recent deaths in Ohio were on farms that are exempt from OSHA regulations.

Three or four seconds is all it takes for a person to become trapped in flowing grain. Three or four seconds. That’s about how long it took you to read this sentence.

Ten seconds is all it takes for that person to become completely covered in flowing grain. Ten seconds.

And more than half of all grain engulfments result in death by suffocation. Deaths that could have easily been prevented.

Grain can become “bridged” when wet kernels stick together and form a crust, which looks like it’s self-supporting, although a hollow cavity may have formed under it as grain is removed below. If you go in a bin and break through that bridge, chances are you’ll be completely buried in seconds.

Likewise, if a chunk of grain has blocked the auger, and you enter the bin and try to dislodge it, those walls of grain are likely to come tumbling down. The same avalanche can happen if grain has caked against one of the bin walls and you go to in to knock it loose with a shovel.

There are grain bin safety rules that should be reviewed every year with every family member and every employee. Check with your local Extension office or online at extension.org for those reminders.

Today.