Commentary: On-farm grain handling too big for OSHA to ignore
OSHA also says that grain handling operations are not covered by the exemption because it is not a core agricultural operation such as growing and harvesting crops. (I suspect most farmers would disagree with this assertion.)
OSHA concludes, saying "…as none of the Appropriation Rider restrictions would apply, OSHA can perform all enforcement activity regardless of the size of the employer."
There is more fodder for OSHA. According to Purdue University, 660 farmers and workers have suffocated in grain bins since 1964. Also more than 220 teens, 18 years and younger, have died in grain bin accidents since 1964. In 2010, there were 51 accidents involving grain bins and 26 people died.
Burgeoning Bin Capacity
One reason OSHA may be looking at on-farm storage is not only the deaths, but in 1978 there was 5.4 billion bushels of storage on U.S. farms. The last USDA data I could find shows that U.S. "on-farm storage capacity totaled to 12.8 billion bushels on December 1, 2011." USDA data also describes Iowa leading all states with 2.05 billion bushels of on-farm storage capacity followed by Illinois with 1.6 billion bushels.
Purdue University's Agricultural Safety and Health Program has been documenting grain entrapment cases in the U.S. and it says there have been over 900 fatal and non-fatal entrapment cases since 1964. The study says "No fewer than 27 fatal and non-fatal grain entrapments occurred in 2011 on farms and commercial grain handling facilities." This is a "47% decrease in entrapments over 2010 when 51 entrapments were documented."
The study goes on to point out that "since 2002, however, the five-year average has increased steadily back to 29.2 incidents per year in 2008, 32.0 in 2009 and 36.0 in 2010."
OSHA May Have an Argument
The senators may want to read their own legislative language and OSHA's before getting too far out on a limb on this issue. Also, where have they been since June 28, 2011?
You may want to read the June 28, 2011 OSHA memorandum if you have on-farm grain storage. The memo to regional administrators is from Mr. Fairfax and Thomas Galassi and is titled "OSHA's Authority to Perform Enforcement Activities at Small Farms with Grain Storage Structures Involved in Postharvest Crop Activities (SIC 0723/NAICS 115114).
You may conclude that OSHA's activity may not be as "absurd" and "blatant" as our lawmakers suggest.
Gary H. Baise is a principal at OFW Law (Olsson Frank Weeda Terman Matz P.C.). This article first appeared in Farm Futures magazine. The opinions presented here are expressly those of the author. For more information, go to www.OFWlaw.com.
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