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On August 4, 2010, the United States Occupational Safety and Health Administration (“OSHA”) sent a letter to 3,300 grain storage facility operators around the country. The letter was sent as a result of a spate of employee injuries and deaths in such facilities over the past year and based on data from the private sector documenting several dozen employee entrapments or engulfments in grain storage facilities in 2009. The letter, authored by OSHA’s Chief, Assistant Secretary of Labor David Michaels, states that “OSHA has found that grain entrapments generally occur because of employer negligence, non-compliance with OSHA standards, and/or poor safety and health practices”. “It is your responsibility,” the letter goes on, “to prevent your workers from dying in grain storage facilities.”
The primary purpose of the letter is to put employers on notice of what OSHA believes to be a serious problem in the grain and feed industry and to inform employers of those steps OSHA says we must take in the event that any employees enter grain storage bins. Some of those steps arguably go beyond what OSHA’s own standards require. Be that as it may, in the event an employer who has received the letter suffers an employee engulfment or entrapment-- whether or not resulting in a fatality-- OSHA is certain to use the letter to support a position that the employer “wilfully” violated OSHA’s Grain Handling Facilities Standard or its Confined Spaces Standard. Willful violations of OSHA standards include not just intentional acts, but also reckless acts; that is, acts committed with “plain indifference” to requirements of the standard in issue.
Each willful violation of an OSHA standard can result in a penalty of up to $70,000 under current law. If changes to the Occupational Safety and Health Act are made as has been proposed in HR5663, called the Robert C. Byrd Miner Safety and Health Act of 2010, a bill that has been referred out of committee to the full House of Representatives, the penalty for each willful violation unrelated to a fatality will rise to a maximum of $120,000 and, in the event of a related fatality, to a maximum of $250,000. Liability for OSHA’s citations – the cost of defense and the cost of any penalties ultimately imposed – is not coverable by insurance. Additionally, an employee entrapment or engulfment event is traumatic to management and the workforce and can result in far-reaching public and employment relations impacts that are additive to the near-term direct financial costs.
Because grain engulfment/entrapment cases often result in employee deaths, grain storage facility employers also need to be aware that OSHA this year adopted a policy that it will refer all fatalities that it concludes resulted from willful violations of an OSHA standard to the U.S. Department of Justice for consideration of criminal prosecution. While only employers can be criminally prosecuted under current law, employers who are individuals can be sentenced to prison for up to six months for a first conviction and up to 12 months for a second conviction, and employers can be fined up to $500,000 upon conviction. Under the proposed Byrd Bill, the maximum prison term would rise to 10 years for a first conviction and 20 years for a second conviction in the event of a fatality resulting from a “knowing” (seemingly a lesser standard than “willful”) violation of an OSHA standard. In addition, “knowing” violations of OSHA standards resulting in “serious bodily injury” could result in imprisonment for up to five years for a first offense and up to 10 years for a second offense. And corporate officers and directors would be subject to prosecution, fines and imprisonment.
OSHA also has adopted a local emphasis program for grain handling facilities (that is, feed mills, wet corn mills, pet food manufacturers, grain elevators, and grain warehouses) having 10 or more employees in OSHA Region V, which includes Wisconsin, Minnesota, Illinois, Indiana, Michigan, and Ohio. The emphasis program will mean a significantly increased likelihood of inspection of all covered employers and a more concentrated focus during any such inspection on safety-related grain handling policies and procedures.
The time for grain employers to review their grain safety policies and procedures – both what is on paper and what is enforced – is now. Now also is the time for grain employers to put in place, or to update, their internal procedures for handling an OSHA inspection. Taking control of an inspection at the outset, particularly in the event of a fatality, is absolutely critical to managing the outcome.
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