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.
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