OSHA cracks down (sometimes) on worker deaths in grain elevators

Monique Harper, 41, had a beautiful smile that family and friends will never forget. "Monique was the most hilarious and free-spirited person you will ever meet," said one of her sisters. "She was a mother that loved her children, family and friends." Monique Harper's contagious smile and free spirit are now only memories. She was one of the 26 U.S. workers killed in 2010 after being engulfed in grain at storage facilities that hold billions of bushels of harvested corn, soybeans, wheat, barley, and rice. Another 25 workers in 2010 were trapped in grain, but were rescued.

Entrapments and suffocations in grain storage facilities are preventable, yet the number of incidents has been on the rise since 2001. That year, there were less than 20 entrapments; in 2007-2009 there were about 30, and in 2010 there were 51. Last summer, after two teenagers were killed at grain silo in Illinois, the assistant secretary of labor for OSHA, David Michaels, said the agency had had enough. He sent a letter to hundreds of grain handling operators reminding them:

"...it is your responsibility to prevent your workers from dying in grain storage facilities. ...you must be vigilant and always follow the long established, common sense safety practices that will prevent these tragedies."

He specifically listed seven safety practices, including: "Prohibit walking down grain and similar practices where an employee walks on grain to make it flow." He warned:

"If any employee dies in a grain storage facility, in addition to any civil penalties proposed, OSHA will consider referring the incident to the Department of Justice for criminal prosecution."

The letter was dated 27 days before Monique Harper's death. As far as I can tell, a copy was sent to her employer Producers Rice Mill.

Monique Harper's family tells me that she had worked just a couple of days at company's Stuttgart facility before her death on August 31, 2010. OSHA's office in Little Rock, AR investigated the incident and issued one citation on December 3, 2010 for a serious violation of OSHA's grain handling standard. OSHA found that the employer failed to prohibit employees from "walking down the grain" (1910.272(h)(2)(ii)):

"...where an employee walks on grain to make it flow within or out from a grain storage structure, or where an employee is on moving grain."

The exact dangerous practice warned about in the OSHA chief's letter.

The penalty proposed by OSHA against Producers Rice Mill for this violation was only $6,300. Under the law, the maximum OSHA can propose for a serious violation is $7,000. Because the penalty proposed is $700 less than the maximum, it looks like the company is getting a 10% discount probably because the employer is considered a small business, or because they had not been cited by OSHA in the last few years. Regardless, the company has contested the violation and the penalty. History tells us that in the end, this Arkansas employer will probably pay substantially less than OSHA's proposed penalty.

I can understand if Monique Harper's family doesn't think that OSHA didn't really throw the book at Producers Rice Mill Inc. They only wrote one citation and the penalty is not very steep. Part of the problem is that OSHA's penalties have not been updated by Congress since 1990. The maximum proposed penalty for a serious violation is $7,000. Another problem is the provision in the OSH Act for criminal violations. In the OSHA chief's August 2010 and February 2011 letters to grain storage operators, he indicated that employers could face criminal prosecution. What he didn't mention in the letter is that referrals to the Justice Department only occur when OSHA classifies the violation as "willful" -- a tough legal standard---and are rarely prosecuted because they are not felonies, only misdemeanors.

The day I spoke to Monique Harper's family, I noticed an OSHA news release announcing nearly $500,000 in penalties against an Ohio grain elevator operator called Gavilon Grain. There had been another worker fatality just 17 days after Monique Harper's death. On September 17, 2010, Andrew Nicholas Dill, 20, was killed while working at Gavilon Grain's facility in Morral, Ohio. His death also came after the OSHA chief's warning letter to grain handling storage operators, which specifically mentioned the death of two workers aged 14 and 19 years. These young workers probably had something in common with Andrew Dill, whose family says he

"enjoyed playing video games, messing with electronics, playing basketball and tennis with his mom, camping with his friends, and his many pets."

Like Monique Harper's death and the others, Andrew Dill's death could have been prevented. Why was OSHA able to crack down on Gavilon Grain, but seems to have let Producers Rice Mill off easy with a proposed $6,300 penalty.

First, the circumstances of the two incidents may be different. We don't have access to the investigation files and OSHA won't release them until the cases are closed. Second, OSHA's news release about the Gavilon Grain case reported on inspections at three different Gavilon facilities. One of the inspections was at the company's Morral site where young Andrew Dill worked. OSHA inspectors wrote eight citations, including two classified as willful. The willful violations involved failing to (1) lock out the discharge and sweep auger, and (2) provide an appropriate entry permit for workers to perform work inside the grain bin. OSHA proposed $70,000 each for these two willful citations, plus another $35,000 for other violations, including failing to train employees and failing to have rescue equipment.

In addition, the OSHA regional office responsible for inspections in Ohio, Illinois and Wisconsin has a special enforcement program related to grain-handling safety. OSHA noted:

"as a result of violations discovered at the Morral facility, OSHA initiated inspections at the company's West Jefferson and Harpster facilities."

It was worth the effort. At Gavilon's West Jefferson facility, OSHA inspectors wrote 22 citations, including two repeat violations and 13 serious for a variety of health and safety hazards. The proposed penalty totals $171,000. At Gavilon's Harpster facility OSHA inspectors wrote 16 citations, including one willful, and proposed a penalty of $119,500.

I've never lost anyone close to me in a work-related incident, but I imagine the "whys" are endless. The whys of what happened that day may never be answered. The whys of a weak OSHA law and meager penalties should be asked of Congress. I urge OSHA to continue publicizing the results of its inspections of grain handling facilities---whether they result in willful citations or no violations at all----and help families like the Harper's understand OSHA's authority and why its investigations may disappoint.