Over the last two years, the United States Occupational Safety and Health Administration (“OSHA”) has been targeting grain storage facility operators around the country for inspection.  The enforcement effort has resulted from a spate of employee injuries and deaths in such facilities over the past several years, including several dozen employee entrapments or engulfments in grain storage facilities in 2009.  In a letter to employers in the industry in April of 2010, OSHA’s Chief, Assistant Secretary of Labor David Michaels, said, “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 was to put employers on notice of what OSHA continues to believe to be a serious safety issue in the grain and feed industry and to inform those employers of the steps OSHA says we must take in the event any employees enter grain storage bins or other confined spaces, like boot pits or legs.  Some of those steps arguably go beyond what OSHA’s own standards require.   Be that as it may, in the event an employer who received the letter or otherwise is on notice of OSHA’s position suffers an employee engulfment or entrapment-- whether or not resulting in a fatality-- OSHA is certain to use the employer’s knowledge 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.  Liability for OSHA’s citations – the cost of defense and the cost of any penalties ultimately imposed – are 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 now considers, with its lawyers from the U.S. Solicitor of Labor’s Office, all fatalities that it concludes resulted from willful violations of an OSHA standard for referral to the U.S. Department of Justice for consideration of criminal prosecution.  While only employers can be criminally prosecuted under current federal 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.  In addition, states and district attorneys will prosecute individuals under state criminal laws in appropriate cases like those involving asphyxiations or other engulfment-related deaths.

Effective November 1, 2011, 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.  You can find a copy of the program at https://www.osha.gov/dep/leps/RegionV/Grain_fy12.pdf.  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.

But grain employers throughout the country should be aware of OSHA’s new focus on and interest in grain handling.  Just that a grain operator has no facilities in OSHA Region V should not lead it to believe that it is “safe” from OSHA’s enforcement position.

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 is also 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.