OSHA Drops Case Against Nebraska Farm

(DTN) -- The Occupational Safety and Health Administration has dropped its case against a Nebraska farm that potentially faced $132,000 in fines from the agency over grain-bin inspection issues going back to 2011.

James Luers, an attorney from Lincoln, Neb., says OSHA had failed to respond to a motion for summary judgment that Luers had filed with the administrative-law judge. On Monday, Luers said he got a call from OSHA officials who told him they were dropping the case.

The fact OSHA had cited a farm with fewer than 10 employees with regulatory violations over grain handling sparked enough political furor that OSHA reversed a 2011 memo that had opened the door to such inspections. The 2011 memo to field inspectors stated that the agency could perform inspections at grain storage facilities. The memo stated that virtually every post-harvest activity could be inspected because much of the work is the same as a commercial grain elevator. Thus, anyone engaged in work such as "crop cleaning, sun drying, shelling, fumigating, curing, sorting, grading, packing and cooling" could be inspected.

Luers' client operated "C.O. Grain" as a grain-handling operation more than a decade ago, but the owner got out of that business and now is a partner in a farm operation, Niobrara Farms. When OSHA targeted grain-handling operations, inspectors went after Luers' client. Until Luers got the phone call this week, he understood OSHA was still trying to classify Niobrara Farms as a grain-handling business and not a farm.

"I think that distinction wasn't there, and if they (OSHA) had gotten something against my clients, that would have opened the door into investigations against Nebraska farms," Luers said. "Maybe Nebraska farms don't appreciate it now, but they should. We made enough noise that they aren't going to try it again for a while."

Luers had written the entire Nebraska congressional delegation in early December to explain the issues with OSHA and the potential fine facing his client. Luers pointed out in the letter that almost any farmer in Nebraska who stores grain would be open to OSHA investigations and violations.

Sen. Mike Johanns, R-Neb., a former U.S. agriculture secretary, then authored a letter with 42 other senators to Labor Secretary Tom Perez in December demanding the agency stop inspecting family farms. Since 1976, Congress has exempted farmers from OSHA regulations if the farms employ fewer than 10 people and do not provide housing for temporary workers. The senators noted OSHA's memo on grain bins "is creating an artificial distinction in an apparent effort to circumvent the congressional prohibition on regulating farms."

OSHA issued a statement in mid-January clarifying its position on farms and grain bins and basically agreed to stop attempting to inspect farm operations. In a letter to Congress earlier this month, the Department of Labor wrote that it was withdrawing the 2011 memo.

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