OSHA Deputy Administrator Jordan Barab asserted that the agency has been faithful to a longstanding congressional spending clause that forbids the agency from enforcing safety standards at small farms that employ fewer than 10 people.
“It has never been our intent, nor our practice, to target small farms for inspection, in violation of the congressional rider,” Barab said during a conference call on Wednesday. “In fact, it has been our intent and our practice to strictly comply with the rider.”
In response to an uptick in grain-related fatalities, OSHA in 2011 issued a memo asserting that the agency has jurisdiction over small farms that perform crop cleaning, sun drying, sorting, grading, packing and other “post-harvest crop activities.” Barab said OSHA is setting up a meeting with the Department of Agriculture “to very clearly define where we consider there to be certain post-harvest operations that are not considered farming operations under the rider.”
“We want to make very clear which situations and which operations are very separate from farming activities and which ones aren’t,” Barab said Wednesday. “We don’t want there to be any doubt with small farmers that we’re going to come onto their farms and cite them for anything related to their farming operations. That’s not our intent.”
U.S. Sen. Mike Johanns – who is convinced that OSHA is violating the terms of the congressional rider – pushed for language in the fiscal 2014 spending bill that calls for OSHA to work with the Department of Agriculture “before moving forward with any attempts to redefine and regulate post-harvest activities,” including grain storage.
The Nebraska Republican has injected politics into the issue, characterizing OSHA’s interpretation of the congressional clause as “a blatant overreach and yet another example of this administration’s backdoor rulemaking,” as he said recently on the Senate floor.
“Since 1976, Congress has included specific language in appropriations bills expressly prohibiting OSHA enforcement action on farms with 10 or fewer employees,” Johanns said on the Senate floor. “However, this did not stop the agency from distorting the definitions of certain farming practices, and sending inspectors to small, family-owned farming operations anyway. In my home state of Nebraska, OSHA targeted a family farm that grows corn and soybeans and has only one non-family employee. It is clearly within the scope of the congressional exemption.”
Johanns is referring to C.O. Grain Inc., a grain-storage facility in Atkinson, Neb., that is fighting $132,000 in proposed OSHA fines levied after the agency inspected the facility and issued 16 citations for safety violations. OSHA said it inspected the facility as part of a local emphasis program targeting grain-handling establishments.
Asked about the Nebraska case, Barab said he couldn’t say much “because it is under litigation right now.” However, he said the reason that OSHA initiated the inspection was because C.O. Grain listed itself “not as a farming operation but as a grain and field-bean merchant wholesaler.”
“Nor did they claim to be a farming operation when we first went out there,” Barab added.
Grain Campaign 'Saved Lives'
Barab emphasized that OSHA issued the controversial 2011 memo “in response to a high number of grain-related fatalities resulting from engulfments in grain facilities in 2010.”
“There were workers – in some cases, teenagers on their summer jobs – essentially drowning in grain,” Barab said. “This is something that is a real recognized hazard, and OSHA has had a standard to prevent it since the late 1980s.”
As part of a “a very aggressive campaign to address the issue,” OSHA offered compliance and technical assistance for grain operators and stepped up its enforcement efforts, Barab said.
“We also sent letters out to every grain operation in the country informing them about the problems – the fatalities in 2010 – and educating them about our standards,” he explained. “The good news is that the campaign saved lives.”
According to statistics cited by Barab, the number of grain-related fatalities dropped from 31 in 2010 to eight in 2012, while the number of grain engulfments dropped from 57 to 19 during that same period.
The intent behind the 2011 memo, Barab explained, was to clarify which facilities were exempt from inspection and which ones weren’t, “because we wanted to make sure that [compliance officers] didn’t go to the wrong places.”
In analyzing its inspection data, OSHA has come to the conclusion that its compliance officers “did not go to the wrong places,” Barab asserted. However, he acknowledged that the agency “certainly can see places where [its enforcement policy] can be clarified.”
“We feel that our policy, at least our practice, has been fairly consistent, not just in this administration but over several past administrations,” Barab said. “If the way we explain that policy is confusing, if farms are feeling like we’re not complying with the rider, we are more than willing to address that confusion and modify that policy and we are actually in the process of doing that right now.”