OSHA's Grain Bin Gambit: Is It Legal?

Defending Agriculture

Federal officials set sights on grain storage inspections – and fines

Published on: January 13, 2014

On July 16, 2007, Richard E. Fairfax, OSHA's Director, Directorate of Enforcement Programs, wrote to a firm in Baton Rouge, La. The firm had asked if "The Appropriations Act exempts small farming operations from enforcement of all rules, regulations, standards or orders under the Occupational Safety and Health Act."

It also asked if a farming operation is exempt from all Occupational Safety and Health Act activities if it employs 10 or fewer individuals.

Mr. Fairfax said, "Under OSHA's current appropriations law, OSHA is not allowed to spend any of the funds appropriated to enforce any standard, rule, regulation, or order…" if the farming operation employs 10 or fewer individuals. The letter also says "this letter constitutes OSHA's interpretation of the requirements discussed."

Federal officials set sights on grain storage inspections – and fines
Federal officials set sights on grain storage inspections – and fines

Now flash forward over six years later. On Jan. 2, 2014, the Wall Street Journal wrote an editorial describing how OSHA inspectors are now showing up on farms that have fewer than 10 employees, to inspect and regulate grain storage bins and fine farmers if necessary.

U.S. Sen. Mike Johanns, R-Neb., and other senators say OSHA's activities are "absolutely incredible, absurd and a blatant overreach in violation of the law."  

Maybe. Maybe not. Read on.

On June 28, 2011, the same Mr. Fairfax is listed on a memorandum which says OSHA has authority to conduct enforcement activities on farms which have grain storage facilities.

His memo defines a farming operation as meaning "…any operation involved in the growing or harvesting of crops, the raising of livestock or poultry, or related activities conducted by a farmer on sites such as farms, ranches, orchards, dairy farms or similar farming operations."

The OSHA memo claims that these activities are listed under the SIC code of 01 and are provided an enforcement exemption.

OSHA  says grain storage inspection and enforcement is covered under SIC code 0723 which covers farms "…engaged in performing services on crops, subsequent to their harvest, with the intent of preparing them for market or further processing." OSHA says that corn drying as well as grain drying and fumigating are covered under SIC 0723, not SIC code 01 or 02. (The senators may want to check their facts.)

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."