From KansasCity.com, Kansas City Star, Mike McGraw, 25 Nov 2011.
The image of Patrick Hayes’ face after he suffocated in a grain bin under 60 tons of corn still haunts his father, Ron, who remembers: “Tears running down his cheeks; corn dust in his nose, his mouth, his eyes …”
That deadly accident occurred 18 years ago. But when Ron Hayes learned of the six workers killed in an Oct. 29 explosion at the Bartlett Grain elevator in Atchison, Kan., he understood what their families were going through.
“It brought back all the sadness … and I couldn’t hold back the tears,” Hayes said.
Working in grain bins is one of the most dangerous jobs in what has become America’s most hazardous industry: agriculture. And while deaths from grain elevator explosions such as the one in Atchison have become rare, grain bin accidents such as the one that killed Patrick Hayes are rising.
Indeed, grain suffocation deaths last year reached an all-time high of 26. Despite those rising deaths, little has changed since Hayes died nearly two decades ago.
His father — who now advocates for the families of workers killed on the job — maintains that it’s time to start treating such deaths as crimes and send those responsible to jail.
The Occupational Safety and Health Administration considered criminal charges after Patrick Hayes suffocated while inside a grain bin without a safety harness in DeFuniak Springs, Fla., in 1993. But the agency dropped the criminal case and settled instead on a $42,000 fine.
Maybe if the agency actually put someone in jail, Hayes argues, grain bin operators would be more careful when workers are “walking the grain.”
That’s what it’s called when employees, even farm children, are sent into bins when grain clumps together or sticks to the sides. They often use shovels or pickaxes to break the clumps apart so augurs can pull the grain to the bottom of the bin for loading.
But once the grain is freed, it can act much like quicksand — swallowing workers, plugging their airways with grain and ultimately suffocating them.
Experts contend, however, that nearly every death could be prevented if bin operators adhered to simple, safety precautions, such as providing workers with a safety harness.
As recently as Nov. 10, Glenn Seba, 19, was trapped in grain up to his neck at Lathrop Feed & Grain in Lathrop, Mo. OSHA is investigating, but Seba was lucky. Rescue workers freed him after an hour of digging.
Neither Seba’s family nor the grain elevator’s operator returned calls seeking comment on the incident.
But other accidents have resulted in deaths, including:
• In December 2009, a grain bin worker in McLaughlin, S.D., died trying to free clogged sunflower seeds. OSHA proposed $1.6 million in fines for numerous safety violations.
• In November 2010, another worker died in a grain elevator in Taft, Texas. OSHA cited the company for 20 safety violations, including failure to provide a safety harness.
• In August that same year, OSHA fined a Wisconsin grain cooperative $721,000 after a worker was buried up to his chest in frozen soybeans for four hours. Later, the agency proposed an additional $374,500 in penalties for other violations.
At the time, OSHA chief David Michaels said, “This continued noncompliance with long established safety standards for working in grain handling operations … shows a complete disregard for worker safety.”
In July 2010, 14-year-old Wyatt Whitebread and 19-year-old Alex Pacas died in a corn bin they were trying to clear in Mount Carroll, Ill. As the corn sucked the two boys deeper into the bin, a third boy, Will Piper, tried to help.
“Will was trying to keep the corn out of Alex’s face,” recalled Alex’s aunt, Catherine Rylatt.
According to Rylatt’s account, now part of a safety video produced by the National Corn Growers Association, Alex “was praying and telling Will to ‘tell everyone (his six little brothers and sisters) I love them.’ ” In the end, Rylatt recounted, Will was rescued, but he “couldn’t keep Alex alive. He couldn’t keep the corn out of his face.”
OSHA proposed more than $500,000 in fines for the company’s failure to train the boys or turn off the bin’s augur.
Haasbach LLC, which runs the elevator, is contesting the fines, arguing that it is a farmer-owned facility with fewer than 10 workers and therefore not subject to OSHA regulations.
As in the Illinois case, the victims are often boys or young men — one victim was only 7 years old — and most of the deaths last year occurred on family farms not covered by federal safety rules, according to a recent study by Purdue University.
Jess McCluer, director of regulatory affairs for the National Grain and Feed Association, said the industry was aware of the Purdue study and that his association and others had dealt with the issue by “developing numerous training materials around engulfment and emergency rescue.”
Last year was the worst year for grain entrapments on record, with 51. Experts contend that number is probably low, however, because many incidents go unreported.
Purdue researchers found such accidents are becoming more common because more grain is being stored on farms and in bigger grain-handling facilities, partly because of the increased demand for ethanol.
In addition, much of the grain stored in 2010 was “out of condition,” because of a short growing season the previous year, causing it to “clump” or stick inside bins and elevators, and requiring workers to free it up.
The study also found that “every flowing grain entrapment is a preventable incident.”
Last year Michaels, OSHA’s assistant secretary of labor, sent out thousands of letters to grain storage companies warning that he was appalled at the “outrageously reckless behavior” of some operators.
Hayes, however, insisted that warning letters and fines weren’t enough.
“There’s one way to stop it, and that is to put someone in jail,” he said.
Although some local prosecutors have sought jail time for employers in egregious workplace incidents, the federal government seldom seeks such remedies.
Though most OSHA fines are civil, criminal misdemeanor penalties — including fines and up to six months in jail — are available under federal workplace safety laws. But such cases are few and far between because they’re more difficult to prove and the U.S. Justice Department must agree to file them.
Bill Field, a Purdue professor who helped conduct the most recent safety study, agreed that putting a grain bin operator in jail might help. But Field pointed out that there are only about 10,000 commercial grain storage bins nationwide that would be affected by criminal penalties.
Most of the bins — numbering more than 1 million — where most of the accidents occur, are on family farms that aren’t covered by federal safety rules.
Critics such as Hayes said that OSHA squandered an opportunity to set an example of tough enforcement in a 2009 Colorado case involving Tempel Grain Co.
After Cody Rigsby, 17, suffocated at the Tempel elevator in Haswell, Colo., OSHA proposed $1.6 million in fines, and the government pursued criminal prosecution of Tempel executives. In the end, however, the government agreed that no one would serve prison time.
A company official pleaded guilty to aiding and abetting in Rigsby’s death but was sentenced to five years’ probation. Tempel agreed to pay $50,000 in fines plus $500,000 to Rigsby’s family.
According to published accounts, Kelly Spitzer, Tempel’s vice president, said in court that the company had no idea it was sending Rigsby into danger when he was told to “walk down the grain” without a safety harness.
“With the Tempel case, OSHA could have fired a shot heard throughout the grain industry. But rather than a bang, this case ended with an enforcement whimper,” said Jeff Ruch, executive director of Public Employees for Environmental Responsibility, a nonprofit group that represents state and federal employees.
Asked about the agency’s actions in the Tempel case, an OSHA spokesman issued a statement from Michaels, the agency’s director.
“We know that money won’t bring back this young man’s life, but we can make every effort to ensure that these terrible tragedies don’t happen again. We will use any means — from tough enforcement to aggressive outreach efforts — to put this industry on notice that we will not tolerate risking workers lives in hazardous situations that are entirely preventable.”
State workers’ compensation laws have long protected employers from lawsuits filed by the families of dead and injured workers. But another grain bin death in Nebraska could challenge that long-held employer protection in one case.
In May 2007, a week before he was to graduate from high school, 18-year-old Joseph Teague was shoveling grain inside a bin owned by Crossroads Cooperative Association when an augur at the bottom of the bin, which should have been turned off, caused the grain to suddenly flow.
Teague was pulled under and suffocated.
A few months later his son, Joseph James Teague Jr., was born, and a few weeks after that, OSHA took action. It listed the same violations cited in case after case of grain bin deaths — inadequate safety gear, a running augur and improper rescue equipment.
OSHA proposed $130,050 in civil penalties, and in March 2009 Crossroads was prosecuted on a federal misdemeanor charge.
Crossroads pleaded guilty under an arrangement where no one was required to serve jail time. It also agreed to pay $100,000 in fines and to comply with OSHA rules in the future.
In a separate action, Teague’s estate filed a civil lawsuit, arguing that workers’ compensation laws should not limit the damages paid to his family because “Mr. Teague’s death was not an unforeseen accident.” The lawsuit alleged “assault and battery and willful unprovoked physical aggression.”
On Nov. 9, the Nebraska Supreme Court set the stage for a possible and extremely rare exemption from workers’ compensation laws in the Teague case. It reversed a lower-court decision and sent the case back to a district court.
Teague’s lawyers will be arguing again that the case is a criminal matter not addressed by workers’ compensation laws.
Meanwhile, Crossroads was cited once again last year by OSHA while the company was still on probation for another violation of grain-safety standards.
Jan Sharp of the U.S. attorney’s office in Nebraska said OSHA was supposed to notify his office of any new citations but had not done so in the Crossroads case. Sharp said it was unclear whether the citation would have violated the terms of Crosssroads’ probation.
But the issue is now moot, he added, because the term of Crossroads’ probation ended last March.
Hayes is calling on OSHA and the Justice Department, the two federal agencies that try to prevent deaths such as his son’s, to communicate better.
“Better communication could eventually result in jailing a company official,” he said.
To reach Mike McGraw, call 816-234-4423 or send email to email@example.com.