*** In a letter to Congress Feb. 10, OSHA indicated that it has removed a memo (the source of the issue addressed in this story) from its website and will work with USDA and farm organizations to develop any new guidance. OSHA’s letter appears to be in direct response to congressional efforts supported by AFBF, OFBF and others. This news offers hope that the agency will comply with the small farm exemption as required by law.
That’s how Scott Haerr of Clark County says he felt when inspectors from the U.S. Occupational Safety and Health Administration showed up at his family’s grain farm late last year.
He had no idea there was even a possibility that his business would fall under the agency’s oversight. And, until then, most others in the farm community would have said he was right.
“The very first thing is we contacted our county Farm Bureau president,” Haerr said, saying the family was left bewildered and anxious by the prospect of being evaluated on a wide range of federal safety standards.
Larry Timmons, who is serving a second year as president, took the call from the Haerrs and immediately reached out to his contacts at the Ohio Farm Bureau state office.
“The grassroots in Farm Bureau does work,” Timmons said, describing the series of events that would follow. “And I don’t think you can drive that point home enough.”
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Leah Curtis, Ohio Farm Bureau’s director of agricultural law, began looking into the case and found no reason why the Haerrs shouldn’t qualify for a small farm exemption that would prohibit OSHA’s ability to inspect their business.
“We quickly referred the Haerrs to legal counsel knowing something strange was going on,” Curtis said.
The exemption generally applies to farms which employ 10 or fewer employees and do not operate an agricultural labor camp. But consultation with the Haerrs’ attorney surfaced a 2011 opinion letter from OSHA that indicated it did not consider grain handling and storage a part of farm operations.
“This interpretation expanded OSHA’s regulatory scope to nearly every grain farm in the country without congressional approval or a rulemaking process allowing for public comment,” Curtis said.
It essentially meant that many families that store their crops could be regarded as grain handlers rather than farmers.
“We convinced (OSHA) during the informal conference that he was a farmer,” said Kristi Wilhelmy, the lawyer with Barrett, Easterday, Cunningham & Eselgroth LLP, who represented the Haerrs. But that didn’t stop the agency from issuing fines for a handful of minor violations, such as an air compressor that didn’t have a proper guard.
As the Haerrs reached out to other industry groups, Ohio Farm Bureau spread the word about the issue to American Farm Bureau and other state organizations. It turned out that the inspection of a farm in Nebraska was raising similar questions.
Ohio Farm Bureau President Steve Hirsch along with staff met in Washington D.C. with the staff of Ohio’s senators, who were also concerned about OSHA’s broad interpretation of the regulations. Sen. Sherrod Brown began working with his contacts on the issue, and Sen. Rob Portman added his signature to a letter to the Department of Labor opposing the interpretation, which was being circulated by Nebraska Sen. Mike Johanns.
It wasn’t long before OSHA informed the Haerrs that it would not be pursuing its enforcement against the farm.
“I was very surprised that they dropped it so quickly,” Wilhelmy said.
OSHA officials have since downplayed the 2011 memo, saying they were responding to legitimate concerns about grain bin safety and that they do not intend to begin regulating small grain farms. However, until a clearer policy is established, many in the farm community remain wary.
Timmons, the Clark County Farm Bureau president, said the farmers he represents are uneasy about what he called “loose interpretation” of regulations.
“I think people are still concerned, not only with OSHA, but what other government agencies could do,” he said. He plans to use this case as an example of the power of people working together through the county Farm Bureau.
“If there’s a problem, you get in touch with the local people, and the local people can get something done,” he said, adding “The system does work when people voice their opinions.”
Ohio Farm Bureau’s Curtis said the organization also remains concerned about OSHA enforcement and will be keeping an eye on how the agency responds to questions from the farm community.
“Until then, we rely on our members to let us know if this happens on other farms so that we can try to assist those individually,” she said.
As for Haerr, while he said the fines he faced weren’t egregious, he has a better realization of how regulatory overreach could put a farm in financial hardship.
“I think we need to be in a good relationship with our industry groups and our Farm Bureaus, and we need to keep everybody on task,” he said. “I appreciate what they did for us.”
Learn more from Ohio Farm Bureau’s Leah Curtis about how OSHA’s exemption applies to farmers.
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