OSHA Fines Tempel Grain Elevators More than $1.6 Million Following Teenage Worker’s Death

Nov. 24, 2009
OSHA and the Department of Labor’s Wage and Hour Division together have fined Tempel Grain Elevators LLP of Wiley, Colo., more than $1.6 million following the May 29 death of a teenage worker at the company’s Haswell, Colo., grain storage operation. It is the second-largest workplace safety fine in Colorado history.

Seventeen-year-old Cody Rigsby suffocated after being engulfed by grain in one of the facility bins in Haswell, Colo. He was one of four teenage workers the company had hired to clean out grain bins where the company’s lease was about to expire. Another worker saw Rigsby disappear and reported him missing. It took 6 hours to recover the body. The company also exposed three other teenage workers to the cited hazards.

“Tempel Grain ignored long-established standards addressing safety in grain handling facilities. It was well aware of the hazards and knowingly put its young workers in harm’s way,” said Secretary of Labor Hilda L. Solis. “From safety to wage and hour issues, the company created a hazardous and illegal working environment for its workers. This situation must be addressed swiftly and completely.”

  • OSHA investigators determined Tempel failed to protect the teenage workers in the following ways:

    Tempel had them enter into seven, large grain storage bins and “walk down the grain,” i.e. walk on top of the grain in the bins and break up clumps with long rods and shovels so that the grain could flow downward and out of the bins.
  • Tempel did not implement any kind of permit process or other plan to ensure that the bin entry was done using required safety measures.
  • Tempel did not provide the teenage workers with any training in how to perform this task safely.
  • The workers entered the bins from portals located above the top level of the grain and were not given body harnesses and lifelines, or any other method of protection against engulfment.
  • While they were inside the bins, the mechanical systems still were operating. This allowed grain to flow downward out of the bin, creating grain movement that could – and did – also draw a worker fully into the grain.
  • Tempel did not station any observer equipped to provide assistance outside the bins while the workers were inside.
  • Tempel had no emergency action plan for the site, and no rescue equipment was available.

Following its investigation, OSHA proposed $1,592,500 in fines for 22 alleged willful and 13 alleged serious citations. The willful citations include not providing an emergency action plan prior to entering grain bins, failing to train workers in safe bin entry, a lack of grain engulfment protection, failure to shut off and lock out equipment while employees were working inside bins, a lack of rescue equipment, and allowing hazardous accumulations of grain dust that could contribute to fire and explosion. A willful violation is one committed with intentional, knowing or voluntary disregard for the law’s requirements, or with plain indifference to employee safety and health.

The serious citations include unguarded conveyors, fall hazards, a lack of first aid supplies and trained medical personnel, incomplete fire extinguisher inspections, using extension cords in place of permanent wiring and failing to inspect electrical equipment. An OSHA violation is serious if death or serious physical harm can result from a hazard an employer knew or should have known exists.

The company has 15 business days from receipt of all OSHA citations to comply, request an informal conference with OSHA’s area director or contest the findings before the independent Occupational Safety and Health Review Commission.

Majority owner Kelly Spitzer, daughter of company founder George Tempel, said the company is reviewing the report from the Department of Labor.

“The tragic accident involving our friend and employee, Cody Rigsby, deeply affected our company and our community,” Spitzer said in a written statement. “We continue to extend our sympathies and prayers to Cody’s family and many friends.”

The DOL Wage and Hour Division conducted a separate investigation that disclosed 77 child labor violations involving 15 minor employees. These include employing underage workers, allowing teenage employees to work hours prohibited by the Fair Labor Standards Act (FLSA), and allowing them to work in jobs prohibited by the act’s occupation standards as well as by the department’s hazardous occupations orders. These violations carry fines totaling $64,487. The investigation also found 59 workers due a total of $56,285 in back wages for minimum wage and overtime violations of the FLSA.

OSHA standards that address grain bin entry hazards, and require all of the listed protections, are well known in the industry and by Tempel Grain management, according to OSHA, but agency investigators found that the company willfully violated them.

Rigsby would have graduated from high school next spring.

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