“Issuance of this Citation does not constitute a finding that a violation of the Act has occurred.” —from OSHA Citation and Notification of Penalty
On October 29, 2011, a grain elevator explosion in Atchison, Kansas killed six men—four employees and two grain inspectors. OSHA cited the Bartlett Grain Company’s facility and proposed a fine of $406,000 and referred the case to the Department of Justice for criminal prosecution. Five years later, almost to the day, the U.S. Attorney responsible for the case announced that he declined to prosecute, stating “there is not sufficient evidence to support criminal charges against the owner.” Another year later, during this past December, OSHA announced that it had agreed to a settlement for a total penalty of $182,000.
Does this settlement, at about $30,000 per fatality, signal that safety is going to get worse at grain handling facilities?
Was Justice Served?
The purpose of OSHA is to “assure safe and healthful working conditions for working men and women by setting and enforcing standards and by providing training, outreach, education and assistance.” They are quick to respond to incidents with multiple fatalities, not because they are there to serve justice, but because multiple fatalities are generally taken as evidence that there are not “safe and healthful working conditions.” The same conditions, but with no incident, no fatalities, should be of equal concern. So, there should be no thought that an OSHA citation and associated penalty are issued in effort to serve justice.
However, the worse the outcome of the incident, even when the causes are the same, the more people are going to feel the desire for “justice”. We seek to punish outcomes, not to address conditions. Under public pressure, the U.S. Attorney in Topeka opened a criminal case. Conspiracy theorists will enjoy chewing on the fact the original U.S. Attorney on this case, Barry Grissom, left the Department of Justice to go into private practice at the Polsinelli Firm in Kansas City. Among other clients, the Polsinelli Firm represents Bartlett Grain.
Seven months later, Grissom’s replacement, U.S. Attorney Tom Beal made his announcement that he had closed his inquiry into the incident. At the time, many took comfort in the fact that there were still $406,000 in fines from OSHA pending.
Sidney Dekker has made the point that safety always suffers in the pursuit of justice. “Judicial proceedings after an incident can make people stop reporting incidents” [and] “create a climate of fear to share information.” Worse, changes made in response to the justice system are more likely to be guided by lawyers to make an organization less legally vulnerable to the justice system in the future than to make processes and facilities safer.
Was justice served? I don’t know and since I care about safety, frankly, I don’t care.
The Original Citations
OSHA issued its original citation and notification of penalty on April 12, 2012, seventeen days before its deadline. The citations included eight “serious” citations at the maximum allowed penalty of $7,000 each and five “willful” citations at the maximum allowed penalty of $70,000 each.
Most of the citations were in regard to failures to comply with many of the individual clauses of the Grain Handling Facility (GHF) standard 29 CFR 1910.272. However, the citations also included references to 29 CFR 1910.38 (Emergency Action Plans), 29 CFR 1910.132 (Personnel Protective Equipment-fall protection), and 29 CFR 1910.307 (Hazardous Area Classifications for Electrical Equipment).
It is very difficult to discern why some violations were alleged to be “serious” while others were alleged to be “willful”. Bartlett Grain adamantly refuted the characterization of its misconduct as “willful”. Given that the case was not resolved until just recently, over six years since the incident, Bartlett Grain certainly spent more in legal fees than they saved in penalties.
What was thrown out?
In the settlement, OSHA withdrew 3 of the 8 serious citations and withdrew 2 of the 5 willful citations. It recharacterized another two serious citations as “Other Than Serious”, which still have a maximum allowed penalty of $7,000 each. OSHA also recharacterized another two willful citations as “Unclassified” keeping the penalty at $70,000 each. The last of the willful citations was recharacterized as “Other Than Serious” and the penalty was dropped from $70,000 to $7,000. Altogether, the penalty was reduced to $182,000.
The citations that were withdrawn were for violations of
- 29 CFR 1910.272(i)(1), regarding contractor hazard training
- 29 CFR 1910.272(j)(1), regarding having a written housekeeping program
- 29 CFR 1910.272(m)(1)(ii), regarding performing lubrication and maintenance
- 29 CFR 1910.272(q)(1), regarding jogging bucket elevators to clear choked legs
- 29 CFR 1910.307(c)(2)(i), regarding electrical equipment in hazard classified areas
The citations that were recharacterized as “Other Than Serious” were for violations of
- 29 CFR 1910.38(d) and (f), regarding alarm systems and emergency action plans
- 29 CFR 1910.272(m)(3), regarding inspection and maintenance records
- 29 CFR 1910.272(j)(2)(ii), regarding dust greater than 1/8” thick in priority areas
Regardless of the final disposition of the citations, it is easy to imagine that the violations existed. Conversely, it is also difficult to imagine proving them after an explosion. It is hard to say whether OSHA believed it was in error or that Bartlett’s attorneys were simply dogged and persistent in their negotiations. It was clear from the outset that Bartlett was opposed to the characterization of any violation as “Willful” and they were successful in getting that changed.
What was added?
The settlement was not limited to addressing the original 13 citations. It also included a raft of requirements not spelled out in any regulations: the enhanced abatement terms, which will run three years. Nineteen items comprise the enhanced abatement terms, all of which are enforceable for Bartlett Grain Company. The first term is that the enhanced abatement terms apply corporate-wide, not just to the Atchison facility. For the Bartlett Grain Company, that means that these requirements apply to 20 separate facilities, in the jurisdiction of 8 OSHA Area offices, in 4 different OSHA Regions.
The remaining eighteen items include adopting OSHA’s Recommended Practices for Safety and Health Programs. This practice is something OSHA has been promoting for over 30 years, under various names. It applies the elements familiar to those covered by the Process Safety Management (PSM) standard to any workplace. Some elements of the PSM standard—Process Safety Information, Training, Mechanical Integrity, Management of Change, Incident Investigation, Emergency Planning and Response, and Compliance Audits—are also addressed explicitly.
Other items include the requirement that audits be conducted by a third-party and then shared with OSHA, that safety policies, procedures, and training be tracked electronically, and that quarterly progress reports be shared with OSHA.
The most interesting item on the list address grain engulfment hazards and rescue. Each of Bartlett’s facilities must acquire and maintain grain bin rescue tubes, as well as donate grain bin rescue tubes to first responders. Additionally, if any other facility within a 60-mile radius of a Bartlett facility experiences a grain bin fatality, Bartlett must offer grain bin rescue training at a nearby location to employees of the other facility, first responders, farmers, and any other interested individuals. OSHA is only going to require that Bartlett do this once per year.
One of the final sections of the settlement requires Bartlett to agree to waive its fourth amendment rights to require a search warrant before allowing OSHA on its sites. To assure that Bartlett is complying with the settlement, OSHA will be able enter any Bartlett facility to conduct inspections related to the settlement at any time and under any conditions that OSHA deems reasonable, for the three-year term of the settlement.
Anyone who thinks that the settlement simply rewards Bartlett with a $224,000 reduction in penalties has not read the settlement. The implementation of the enhanced abatement terms at 20 separate facilities is going to cost well over $11,200 per facility. It would not be surprising to learn the program, over the course of its 3-year mandate, required an outlay of millions of dollars.
The enhanced abatement terms of the settlement agreement between OSHA and Bartlett Grain Company are going to make the Bartlett Grain Company facilities safer, not less safe. As the items at all 20 Bartlett Grain facilities become familiar, they will spread to other facilities as personnel change jobs and employers.
No one is going to jail. That means that the individuals that survived the incident and ensuing legal ordeal—the ones with the greatest opportunity to learn from this disaster— will have a chance to apply what they learned to make their workplaces safer. Those that work with them will have a chance to learn from them.
Rather than a fine, which reduces non-compliance to a cost of doing business, the enhanced abatement terms set Bartlett on a path to becoming safer. After three years, Bartlett will either see the benefit an item and continue to do it, despite the absence of a prod from OSHA, or it will not see the benefit and do something else. In either case, the facilities, hence the entire grain industry, will be safer.
What Is Important to OSHA?
The enhanced abatement terms, not the citations, are what are important to OSHA. OSHA wants to see safer workplaces, and has been pushing for the adoption of the Safety and Health Program approach for decades. Facilities covered under the PSM standard already know what it takes to implement such a program, but OSHA wants to extend it to other industries. It will use this kind of settlement it achieved with Bartlett to do it.
It is difficult to conclude from the revisions to the citations that there are any lessons learned about what OSHA considers important and what it considered unimportant. It seems possible that any of the citations could have been characterized as “Willful”; each represented a decision made, an ongoing practice, or a management policy. On the other hand, almost all the citations could have been characterized as “Other Than Serious”. Most of them had nothing to do with the incident that occurred on October 29, 2011.
Given that it is almost impossible to predict how OSHA will treat a violation, the best plan is to approach compliance with regulations as the floor, the minimum from which to aspire for more. As you approach compliance with the standards, assume that any violation will be treated as “Willful”, and work very hard to avoid having the kind of incident that prompts the limited staff at OSHA to make a visit to your facility. Once there, finding violations is easy, because they are not limited to violations related to the incident that prompted their visit.
No one plans to have an incident; October 29 at the Bartlett Grain Company elevator in Atchison, Kansas started off like every other day there. In the grain handling industry, make sure you understand and are complying with the GHF standard. But don’t stop there. There are 21 subparts that comprise the OSHA regulations for general industry. Except for Subpart T, Commercial Diving Operations, they all apply. So, comply. OSHA won’t be shy about using them to achieve their objectives.
Photo by Keith Myers, The Kansas City Star – Bartlett Grain, Atchison, Kansas