OSHA Enforcement
Grain Bin Dummy

What It Means To Be on OSHA’s Severe Violator List

The Grain and Feed Association of Illinois uses a dummy inside a training grain bin at the Asmark Institute, in Bloomington, Ill., to demonstrate to farmers how quickly someone can be completely engulfed in grain. It also is used by rescuers to practice lifesaving extraction techniques.

It is understandable, as EHS Today has reported, that businesses would not want to be on OSHA’s Severe Violators list. Those companies are going under extra scrutiny. Let’s consider why.

One of the violations that can put you on OSHA’s list of severe violators is entrapment in a grain silo. Some readers might think that such an accident is a startling surprise to the silo operator. It might be startling, but it shouldn’t be a surprise. 

In September 2013, the U.S. Department of Labor posted an article on its blog about grain engulfments that said: 

“In the past 50 years, more than 900 cases of grain engulfment have been reported with a fatality rate of 62 percent, according to researchers at Purdue University in Indiana…” The blog post also noted: “Earlier this year, deaths and injuries have occurred on farms in Georgia, Illinois, Indiana, Iowa, Nebraska, Ohio and South Dakota when workers have become engulfed in grain storage bins or suffered injuries in other grain handling incidents.” 

By now, everyone in the grain storage business should know about the risks of a worker being trapped in grain. (Ordinary people not in the business know about it from seeing the news.) In addition, the folks in the grain business should know how to protect workers from the risks of engulfment, and they should be protecting workers from these injuries and a potentially terrible death.

When you know that a activity has a risk of deadly harm, you have a moral duty to protect a worker or neighbor or the neighbor’s kid from that harm – just as you hope that your fellow citizens will act to protect you and your kids from death from a foreseeable risk.

This concept was written down at least 2,500 years ago, in the rule about the “goring ox” in Exodus 21:29. It addresses the case of the owner of an ox that has gored a person with his horns, when the owner has been put on notice of the ox’s behavior. That owner is subject to severe punishment, because he knew of the risk and did not protect the public.

Even before OSHA, people in the business knew that it would be dangerous to place a man under or near an operating backhoe. It is obvious to someone with experience, like the foreman who kept me out of harm’s way, and it should have been obvious to the management of the construction company.

The people who allow workers to risk their lives entering grain silos without life-saving precautions are not merely violating OSHA rules. They are violating the common decency and duty their owe their neighbors.

I do not think the silo managers should be put to death like the informed owner of the goring ox. But such reckless indifference to danger might well be considered by the county grand jury. Forget about OSHA. What do your neighbors on the grand jury think In several states, in related cases, the grand juries saw negligent homicide. That charge is much more scary than being put on OSHA’s list.

My thoughts here may be illustrated by the workplace death of 20-year old Brett Collins. He was working in a trench for COP Construction, in Wyoming, when he died. I found the online OSHA inspection report. It has details not reported in the general media. It states:

“The operator of a backhoe was making adjustments to the placement of a trench box in the trench, and the employee was struck by the bucket of the backhoe. Initial information suggested that the bucket was located over the box from one end to the other and that the bucket slipped off the spreader bar. According to this initial information, the bucket struck the employee in the head as he was standing beneath the bucket and arm of the backhoe.”

One could say that the bucket slipping off the spreader bar was an accident. It was not an accident that Collins was in the trench. He was there to do work. Should he have been there at all? Was the death an accident, or was it the result of reckless indifference or negligence? 

OSHA cited the employer, COP Construction LLP, for a few serious violations. From this, I infer that Collins should not have been working in the trench under a backhoe. This is the sort of thing I learned 50 years ago from the foreman while I worked in construction during college, before the creation of OSHA.

Even before OSHA, people in the business knew that it would be dangerous to place a man under or near an operating backhoe. It is obvious to someone with experience, like the foreman who kept me out of harm’s way, and it should have been obvious to the management of the construction company. 

When I served on my county grand jury, I found members to be very thoughtful and sensible. And, if there is an indictment, I trust 12 of my neighbors and yours to decide whether this or some related incident is more than an accident.

Edward Stern served the U.S. Department of Labor for 40+ years as a senior economist and policy/program analyst. He developed regulations, analyzed enforcement strategies and innovated methods of compliance assistance. For the last 27 years, in OSHA, he examined health and safety risks and regulatory feasibility. He also led teams of scientists, IH’s, engineers, doctors, nurses, systems analysts and attorneys from the Department of Labor and the public sector to develop interactive, diagnostic “Expert Advisors” to answer which, whether and how OSHA rules applied to situations. DOL adopted this approach for many other labor law issues. He presented a study on bullying at the Labor and Employment Relations Association annual conference in 2007. He wrote the workplace bullying and psychological aggression chapter of “Halt the Violence” (e-book, Amazon). He is a researcher and advisor on workplace bullying to management and labor, and an accepted, expert witness on bullying in arbitration cases. As a retired fed, he represents AFGE Local 12 on the USDOL Workplace Violence Committee. He can be reached at [email protected].

TAGS: OSHA
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