US district court upholds OSHA subpoena in grain engulfment case

CHICAGO – A U.S. district court has upheld a subpoena issued by the U.S. Department of Labor's Occupational Safety and Health Administration requesting documents from Grinnell Mutual Reinsurance Co. concerning inspections and reports the company prepared for Haasbach LLC. Two teenage workers were killed in a grain engulfment at Haasbach's Mount Carroll, Ill., site in July 2010.

Grinnell contended that the subpoena would discourage businesses from allowing insurers to conduct safety inspections if the material contained in the inspection reports can be used against a business during later litigation or OSHA enforcement proceedings. The court ordered that the records be given to OSHA.

OSHA Assistant Secretary Dr. David Michaels praised the decision. "The court affirmed OSHA's authority to obtain relevant information from an employer's workers' compensation insurance company. This is not surprising legally, but it does illustrate that workers' compensation and OSHA are not separate worlds divorced from each other," he said. "Workers' compensation loss control activities overlap with OSHA's efforts to bring about safe and healthful workplaces, and in order to achieve a safe and healthful working environment for all Americans, all efforts of business, insurance, labor and government must move forward together."

The court ruled that OSHA has jurisdiction to investigate the workplace fatalities, and further has the authority to require the production of relevant evidence and the ability to issue a subpoena to obtain that evidence. The requested documents, which included copies of site safety inspections, applications for insurance coverage for the site, and correspondence between Grinnell and Haasbach concerning the site, were found to "reasonably relate to the investigation of the incident and the question of OSHA jurisdiction," according to the decision.

Haasbach was issued 25 citations by OSHA with a penalty of $555,000 following an investigation into the deaths of the two teenage workers at the company's grain elevator in Mount Carroll. A 20-year-old man also was seriously injured in the July 2010 incident when all three became entrapped in corn more than 30 feet deep. At the time of the incident, the workers were "walking down the corn" to make it flow while machinery used for evacuating the grain was running.

OSHA's Region V, which includes Illinois, Ohio and Wisconsin, initiated a Grain Safety Local Emphasis Program in August 2010, and has since conducted 61 inspections and cited grain operators/facilities for 163 violations. The violations cover hazards associated with grain engulfment, machine guarding, electricity, falls, employee training, combustible dust and lockout/tagout of energy sources on potentially dangerous equipment.

Under the Occupational Safety and Health Act of 1970, employers are responsible for providing safe and healthful workplaces for their employees. OSHA's role is to ensure these conditions for America's working men and women by setting and enforcing standards, and providing training, education and assistance.