Fines Slashed In Grain Bin Entrapment Deaths
Tuesday, March 26, 2013
The night before he died, Wyatt Whitebread couldn't stand the thought of going back to the grain bins on the edge of Mount Carroll, Ill.
The mischievous and popular 14-year-old had been excited about his first real job, he told Lisa Jones, the mother of some of his closest friends, as she drove him home from a night out for pizza. But nearly two weeks later he told her he was tired of being sent into massive storage bins clogged with corn.
Jones choked back tears as she recalled the conversation. "I wish I never had to see another kernel of corn for the rest of my life," Whitebread told her.
Early the next morning, on a stifling hot day in July 2010, Whitebread joined his buddies Alex Pacas, 19, and Will Piper, 20, at the Haasbach LLC grain storage complex. Piper had begun working there the week before, and it was Pacas' second day on the job.
The boys carried shovels and picks as they climbed a ladder four stories to the top of the grain bin, which was twice as wide and half-filled with 250,000 bushels of wet and crusty corn. Their job was to "walk down the grain," or break up the kernels that clung to the walls and clogged the drainage hole at the bottom of the bin.
The work went well at first, with the boys shoveling corn toward a cone-shaped hole at the center of the bin. But around 9:45 a.m., Whitebread began sinking in the corn. He was sucked under in minutes and disappeared. Pacas and Piper also began to sink and desperately struggled to stay on the surface.
Six horrific hours later, only Piper was carried out alive.
"This is one of the most egregious cases we've seen in a long time," says John Newquist, a recently retired assistant regional administrator of the Occupational Safety and Health Administration in Chicago.
"You've got the worst of the worst cases," Newquist adds, noting that one of the victims was too young to legally work in the bin. "The one kid who survived actually saw his friends die. That's just outrageous."
Nonetheless, OSHA responded in the same way it responded to dozens of other fatal grain incidents. It levied a $555,000 fine, one of its largest ever. But it later slashed the fine by more than half.
That's a common practice for OSHA, according to an NPR and Center for Public Integrity analysis of government documents detailing 179 grain entrapment deaths since 1984. Fines were cut 60 percent of the time. More than $9 million in initial fines were slashed nearly 60 percent.
The five biggest fines ever in grain death cases, including the one in the Mount Carroll case, were cut from 50 percent to 97 percent, according to the NPR/CPI analysis.
OSHA says companies have a legal right to challenge and negotiate fines and citations.
"We do everything we can within the current regulatory framework," says OSHA administrator David Michaels. "We issue large fines. We go after companies we think are scofflaws. We do repeat visits to the worst companies."
Michaels also says OSHA has urged both state and federal prosecutors to file criminal charges. "We don't have criminal prosecution powers," he says.
Even in the most egregious cases of employer misconduct, in which workers as young as 14 were endangered or killed, no one has gone to jail. In fact, Department of Labor criminal referral records obtained under the Freedom of Information Act show that criminal prosecutions are rare in grain deaths.
OSHA's efforts have not been effective in discouraging employers from breaking the law and putting workers in danger, says Ron Hayes, a retired X-ray technician and building contractor in Fairhope, Ala.
Hayes became a grain bin safety activist after his 19-year-old son, Patrick, suffocated in a grain bin in Florida in 1993.
OSHA's response to the Mount Carroll tragedy shocked Hayes.
"If this was the first time that this had ever happened in this country, I could see leniency," Hayes says. "But because this happens time and time again, year after year after year, they should pay the full fines, somebody should be prosecuted, and until we do this, until OSHA has the backbone to stand up to do this, we will never see this stop."
The Mount Carroll case is significant to Hayes because some of the same fatal errors occurred 17 years before in the grain incident that took his son's life. The fine imposed on his son's employer plunged more than 90 percent.
Hayes says an OSHA compliance officer sought a fine of $530,000 and multiple "willful" violations, which are cited when employers disregard or show plain indifference to the law. A willful violation is OSHA's most serious sanction, bringing the highest fines and triggering consideration of criminal charges.
But an internal Labor Department investigation concluded that an OSHA area director wrongly downgraded the citations. The fine ended up at just $42,000.
"It is my strong belief that willful violations occurred," OSHA investigator William Mason wrote in a 1994 memorandum stamped "confidential" and obtained by NPR and CPI. "There is a preponderance of evidence."
Mason noted an admission by Frank Brooks, the corporate safety director at Showell Farms, the company that employed Patrick Hayes.
"The company had operated under the roll-the-dice philosophy," Brooks told investigators, according to Mason's memo. "We will take our chances until something happens to change our minds," Brooks explained.
Showell managers admitted that they knew "walking down corn" was dangerous and that employees could be buried in grain. They admitted that they knew they were violating company safety rules when they ran power equipment that drained corn from the bin while workers were inside. Federal law requires shutdown and lockout of such power equipment whenever workers enter grain bins because the equipment creates the flow of grain that can suck workers under.
In response, Hayes relentlessly hammered OSHA, which became the focus of news exposes about its handling of the Showell Farms case. Hayes eventually received a public apology from Robert Reich, the labor secretary at the time.
At Hayes' insistence, OSHA added the phrase "walking down grain" to the list of prohibited activity in grain bins. The agency also sent out warnings to grain storage companies nationwide, and both Hayes and OSHA began concerted safety and awareness campaigns.
'Don't Let The Corn Control You'
Still, 17 years later, after another 100 workers had died in grain, Haasbach LLC sent Will Piper, Alex Pacas and Wyatt Whitebread into the Mount Carroll bin to walk down the grain.
"Our job was to break up the rotten chunks of corn that prevented the corn from flowing into the center of the bin," recalls Piper, the survivor of the incident, who speaks softly and carefully about the day that continues to haunt him.
None of the boys was trained in proper safety procedures and none was warned about the dangers of breaking up the corn, says Piper.
Haasbach supervisor Matt Schaffner told them, "Control the corn," as Piper remembers it. "Don't let the corn control you."
Piper adds that he "didn't have a very good understanding of what that meant."
Neither Schaffner nor his attorney responded to multiple requests for comment from NPR and CPI. But Schaffner described some of his actions that day in a Labor Department deposition contained in court files obtained by NPR and CPI.
"Stay away from the center cone of the bin," Schaffner said he told the boys.
That's a reference to the cone-shaped spaces created when corn is drained from grain bins. The slope and the flow of corn can trap workers.
Schaffner and some of Haasbach's owners admitted in OSHA interviews that they had heard about people trapped and dying in grain, according to an internal OSHA document reviewed by NPR and CPI.
Other adults with farm experience in Mount Carroll also know the danger. Lisa Jones has farmers in her family, and she recognizes the phrase "walking down the corn" and the danger it presents.
"Somebody dies every year it seems like," Jones says. "I mean, you hear about it. Not in our town, but all over. Ever since I was little -- people die in the corn."
But the boys had no grain-handling experience. Piper, the oldest among them, told OSHA investigators, "I had no idea that someone could get trapped and die in the corn."
A 'Quicksand Effect'
On July 28, 2010, during the first two hours of work, the boys were making progress in Bin No. 9, shoveling corn toward the center hole and hacking at kernels crusted four to six inches thick on the sides of the bin.
Then Schaffner opened a second drain hole in the bottom of the bin, according to Piper and the account in Schaffner's Labor Department deposition. Beneath the drain holes, a conveyor belt carried the corn away. The flowing corn inside the bin formed a second cone near the boys.
"It created a quicksand effect, and Wyatt ended up getting caught up in it and started screaming for help," Piper recalls. "Me and Alex went in after him, and we each grabbed one side of him under his armpits and started dragging him out and got pretty close to the edge of the quicksand, and then we started sinking in with him."
Whitebread sank quickly in thousands of bushels of corn and disappeared. Piper says he and Pacas "kept sinking deeper and deeper up to our chests, completely just trapped in corn."
Piled corn exerts enormous pressure, says Dave Newcomb, who teaches grain bin safety and rescue at the Illinois Fire Service Institute. The triangular kernels cling together and make extraction extremely difficult.
"It's just like being shrink-wrapped and it's constantly pushing against you like quicksand," Newcomb says. "If you're trapped in grain up to the waist, it takes over 600 pounds of force plus your body weight to free you from the grain."
The Haasbach supervisor, Schaffner, climbed into the bin to try to dig the boys out, but every shovelful quickly filled in. He then climbed back out to guide arriving rescuers.
Piper is tall and lean and had a few inches on Pacas, so he didn't sink as deeply. Falling corn from above made it worse, gathering around Pacas' neck and chin. Piper remembers his friend screaming that he didn't want to die.
"One last chunk of corn came flowing down and went around his face, and I still had one arm free," Piper remembers, punctuating the tale with quiet sighs. "And I tried to sweep it away from his face as much as I could, and eventually there was just too much."
Soon, only Pacas' scalp and hand were visible above the grain.
"And his hand stopped moving," Piper continues. "And the corn was up to my chin at that point."
The first rescuer in the bin -- Mount Carroll firefighter Tom Cravatta -- was harnessed and tethered to keep from becoming the next victim. Brent Asay, a member of the town's ambulance crew, straddled the manhole at the top of the bin, cut the bottom out of a five-gallon bucket and sent it down on a rope. Cravatta jammed the bucket into the corn and around Piper's head, protecting his face and mouth.
Asay and others in the Mount Carroll ambulance department had attended a grain bin rescue training session just two weeks before. The bucket trick likely saved Piper's life.
But getting Piper and his friends out of the bin required far more rescuers and helpers -- as many as 200 -- as well as 30 semi trucks to carry away corn, special saws to cut into the bin and drain the corn, and trained technical rescue teams (TRTs) with customized grain rescue tubes.
Grain entrapments are so common in Illinois that more than more than 40 grain rescue tubes and 30 TRTs with grain rescue training are deployed around the state, according to Newcomb.
Pacas' lifeless body was just under the corn and so close to Piper that rescuers couldn't fit a single plastic grain rescue tube around him. They pieced two tubes together, jammed the oversized tube into the corn and around both boys, and used grain vacuums to suck out the corn inside the tube.
Vacuuming the corn was a very slow process, especially because itwas wet and crusty. "It was just like working in concrete," one of the rescuers later told Newcomb.
It took an hour to extract enough corn from the tube to uncover Pacas' face. Piper was trapped for a couple more hours, as he remembers it, almost face to face with his dead friend.
A few of the rescuers succumbed to the heat, and the call went out for additional ambulances. "They were dealing with a heat index of about 114 degrees that day," Newcomb says. "You're inside a metal can with the sun shining on it."
When Pacas' body was finally exposed, Piper was told to lean in and hug him so rescuers could vacuum out the corn behind Piper. Even when the corn was down to his waist, rescuers couldn't free him. Newcomb says victims buried that deep have had legs broken and arms pulled from their sockets during rescue attempts.
"So they had to keep vacuuming," Piper says. He continued to hug his lifeless friend as rescuers extracted the corn. In all, it was six hours before Piper was carried out through a triangular hole cut into the side of the bin. He was flown by helicopter to a hospital.
Rescuers worked another six hours before finding the body of 14-year-old Wyatt Whitebread in the corn. Both he and Pacas were pulled out of the bin late that night and taken to their grieving families. At a nearby church, Annette Pacas brushed back her son's black hair and used a wet cloth to wipe the filth from his skin. His body was pockmarked like a golf ball, she says, from the pressure of the corn.
Annette Pacas, a former teacher and now a single mother of six, later learned about her son's final moments.
"He prayed the 'Our Father,' " she says, her voice breaking and pausing to begin the prayer. "Our father who art in heaven, hallowed be thy name."
Pacas pauses again with a deep sigh.
"It was a long time before I could say that prayer again, because every time I went to say it I heard the panic in my son's voice as he was saying that prayer."
This, she says with eyes watering, is "one of the things as a mom that I've really struggled with, is that my son died in terror. He didn't die in peace. He died in terror."
The next words tumble out slowly and softly, cascading to a whisper.
"And it didn't have to happen."
Nearly three years later, Whitebread's parents also struggle to understand what happened.
"[Wyatt] and I were really close, and we talked about everything all the time throughout his whole life," says Carla Whitebread, a high school Spanish teacher and retired U.S. Army major and helicopter pilot. "But he didn't tell me that he was running down the corn. He said he was never in corn higher than his knee."
Wyatt's father, Gary, is a large-animal veterinarian and familiar with agriculture. He went down to the Haasbach bins before Wyatt was hired to find out what his son would be doing.
"They were in an empty bin sweeping up corn because a new crop was going to be coming in," Gary Whitebread says, "not in bins full of corn loading them out."
Safety Violations Cited
Six months later, the federal Labor Department cited Haasbach for violating many of the same safety standards cited in the Showell Farms case 17 years before. Haasbach, the agency alleged:
- required the boys to "walk down grain."
- illegally employed Whitebread and three other underage workers, including Schaffner's 15-year-old daughter.
- didn't provide required grain bin safety training
- didn't require the use of federally mandated safety harnesses, which were hanging in a shed near the bin, dusty and unused
- didn't provide a trained observer to respond to trouble.
- andkept the conveyor system running while the boys were in the bin, which created the quicksand effect that trapped them.
"These rules have been around forever," says Newquist, the former OSHA official, his voice rising in frustration. "They're not rocket science. It doesn't take a lot of money to comply with this."
An attorney for Haasbach LLC says no one associated with the company will comment because ofpending wrongful-death and injury lawsuits filed by the Whitebreads, Annette Pacas and Will Piper.
In court documents, attorneys for Haasbach have asserted that the partnership was not subject to OSHA jurisdiction or regulation. The attorneys claimed it was a farm operation exempt from the rules that apply to commercial grain facilities and the violations cited by OSHA.
But during questioning in depositions, the farmer-partners acknowledged that they did not farm at the Haasbach site -- they used it to store grain and they leased the facility to Consolidated Grain and Barge (CGB), a conglomerate in the commercial grain storage and transportation business.
Robert Haas, a farmer and managing partner in Haasbach, told investigators that the poor condition of the corn was responsible for the incident. The corn had been harvested in 2009, a wet year with a big crop. The high moisture content caused kernels to spoil and clog up in bins.
It was CGB's job to monitor the condition of the corn, Haas asserted in a deposition. In fact, CGB was responsible for drying and shipping the corn, according to its lease agreement with Haasbach, which is contained in court documents reviewed by NPR and CPI.
"Whatever has got to be done with the grain, Consolidated calls the shots," Haas insisted.
Willard Harbach, another farmer and managing partner in Haasbach, told OSHA investigators he knew there were safety harnesses on site but thought they were used to protect workers from falls, not to keep them from sinking into corn. Both he and Haas said in their depositions that they didn't know that Schaffner had hired underage teenagers to work in the bins.
CGB declined interview requests but acknowledged in court documents that "the danger of 'walking down grain' without employing proper safety precautions was known to Consolidated Grain and Barge and its employees involved in grain handling and grain storage."
Still, the company wrote, "Consolidated Grain and Barge was not involved in grain handling in the operation of Bin No. 9 on the date of the occurrence."
Piper says CGB employees at the grain bins, who weighed trucks and processed grain shipments, had seen the boys climb into bins with shovels and without safety harnesses.
"They're not stupid," Piper insists. "They watched us climb the ladders. What else would we be doing?"
CGB and its employees are also named in wrongful-death and injury lawsuits. The company claims in legal filings that the newly hired and inexperienced victims of the Mount Carroll accident were partially responsible for their own entrapment.
OSHA singled out Haasbach with one of its toughest responses ever to a fatal grain incident -- a $555,000 fine and 25 safety violations. Twelve of the citations were labeled willful.
As it did in 1993, the agency delivered a warningto the industry.
"We sent a very strong letter to 13,000 employers, 13,000 grain mill operators, saying, 'Look, people are being killed,' " notes David Michaels, OSHA's administrator. The letter, he says, warned, "This is the law. We're doing more enforcement. You have to follow the law."
This wasn't just a reaction to Mount Carroll: 2010 turned out to be the worst year on record for grain entrapments and deaths. In 51 reported incidents, 26 bodies were recovered from grain, according to data compiled by Bill Field, a professor of agricultural and biological engineering at Purdue University.
The wet harvest of the year before was blamed for bins clogged with grain, prompting farmers and workers to climb in to try to get the grain flowing.
Even before Mount Carroll, Michaels adds, OSHA was cracking down.
"We now do triple the number of inspections that we were doing four years ago," Michaels says. "We continue to issue fines in excess of $100,000 over and over again."
And over and over again, OSHA hascut fines in excess of $100,000. NPR and CPI identified 21 fatal and nonfatal grain incidents since 1993 with proposed fines ranging from $111,600 to $1.6 million, according to OSHA records. Fines were cut in 80 percent of the cases, in amounts ranging from 40 percent to 97 percent.
Some of the remaining cases are still going through OSHA's adjudication and negotiation process and may also end up with significantly reduced fines.
"We don't think reducing the fine to $700,000 or $500,000 or $200,000 is going easy on this industry," Michaels responds.
More Tragedies And More Fine Reductions
Two years after Mount Carroll, OSHA voided 22 willful violations and cut a fine 97 percent in another incident involving underage workers. Seventeen-year-old Cody Rigsby suffocated in a bin at Tempel Grain Elevators in Haswell, Colo., in 2009. He was sent in to walk down the grain. Three other teens working with him escaped.
Rigsby is one of eight teens ages 17 and younger who were killed at OSHA-regulated grain facilities since 1987, according to the records analyzed by NPR and CPI. Another 15 victims were 18 to 20 years old.
The teen death rate is much higher when incidents at farms are included. Farms are generally exempt from OSHA regulation. More than 220 teens 18 and younger havedied in grain incidents since 1964, says Field, the Purdue professor.
In the Tempel Grain case, the Labor Department proposed a $1.6 million fine, its largest ever at the time for a grain incident.
OSHA convinced the U.S. attorney in Denver to file rare criminal charges. But in a plea agreement, the OSHA fine was reduced to just $50,000. Rigsby's family received $500,000 in restitution. Tempel Grain was put on probation for five years.
In the plea agreement, the company admitted to hiring teenagers to walk down the grain, failing to provide safety harnesses and training, and running power equipment that created the fatal flow of grain.
OSHA considered the result a victory, given the criminal prosecution and conviction, and the restitution for the family.
But victims advocate Ron Hayes sees a mixed message, given severely slashed fines, no willful citations and no jail time, even in the death of a 17-year-old.
OSHA "had the perfect opportunity to send a clear message out to the grain facilities and CEOs of this country that we will not stand by and let you continue to kill our workers," he says.
Hayes sees similarities between the case that killed his son, the Tempel Grain tragedy and the deaths in Mount Carroll. He sees little evidence of the deterrent effects of OSHA's enforcement.
Michaels, OSHA's chief, defends the agency's actions in the Mount Carroll incident.
"We had them open their books and we determined that $200,000 was the appropriate fine" after a review of Haasbach's income and assets, he says. "The company also agreed to go out of business and to notify OSHA if they ever went back into business, so we could conduct very strict oversight of them."
Haasbach later sold the facility to CGB, which had owned it before Haasbach was formed.
But Michaels says he doesn't know whether OSHA considered federal farm subsidies when it calculated the assets of the Haasbach partners. The farm families in the partnership received $7.9 million in subsidies since 1995, according to data compiled by the Environmental Working Group.
Carla Whitebread is still furious about the settlement.
"For [Haasbach], that amount of money doesn't make any difference at all," she says. "[Wyatt] could have made a difference in this world, but instead they ... sacrificed my wonderful son to get the corn out a little faster and make a little more money."
"If nothing happens of this, then boys that age are expendable," Whitebread insists.
Grain Incidents Bring Few Criminal Prosecutions
The Labor Department also sought state and federal criminal charges, according to a document obtained under the Freedom of Information Act. The document says the Department of Justice "declined to prosecute" and the Illinois state's attorney for Carroll County "indicated lack of interest."
Scott Brinkmeier, the state's attorney in Carroll County, declined to comment, as did the office of Gary Shapiro, the acting U.S. attorney for the Northern District of Illinois.
Overall, grain incidents bring few criminal prosecutions, NPR and CPI found. An examination of OSHA grain engulfment data and the agency's criminal referral records shows at least 19 fatal and nonfatal grain incidents since 2001 with willful citations, the kind that trigger consideration of federal charges. Eight were referred to federal prosecutors. Three resulted in charges, and one is still under review.
NPR and CPI also found that nearly half of the willful citations issued in fatal incidents since 1984 were downgraded or dropped entirely.
Criminal charges are rare in these and other worker death cases because "penalties under the OSHA statute are so light compared to the gravity of the offense," says Jane Barrett, a former federal prosecutor who now teaches at the University of Maryland School of Law.
The criminal penalty for willful and egregious behavior that results in a worker's death is a misdemeanor, punishable by up to six months in jail and up to $10,000 in fines.
Barrett says this can discourage prosecutors who are presented with felony cases that have "much more serious consequences."
By comparison, she notes, some environmental crimes are felonies that carry more serious jail time and merit their own dedicated division at the Justice Department. Worker deaths don't get the same treatment.
"Sending a 14-year-old into a grain bin without proper safety equipment," Barrett says, "should be as unacceptable as discharging a pollutant into a waterway that kills fish."
The Mount Carroll case could have resulted in state involuntary manslaughter charges, contends Steven Beckett, a criminal law professor at the University of Illinois College of Law.
Involuntary manslaughter in Illinois is defined as "the unintentional death of another human being caused in a reckless manner," Beckett says.
Beckett also recognizes that personal and "jurisdictional complexity can present a real problem for a local prosecutor." OSHA and federal prosecutors also have jurisdiction. And in a small town like Mount Carroll, with a population of 1,700, "everybody knows everybody."
Lisa Jones, the family friend who drove Whitebread home the night before he died, says people in Mount Carroll have been forgiving, at least when it comes to Matt Schaffner, the Haasbach supervisor who was working with the boys. Jones says she and her family are close friends with the families of the Mount Carroll victims and the Schaffners.
"It's just been a devastating thing for their family and for Matt," she says. "He's the most gentle, kind person. He would die a million deaths to save either of those boys."
Nevertheless, Beckett believes the Mount Carroll case gave OSHA the potential to send a clear message to the grain industry.
"The way you get people's attention is that you prosecute them criminally," Beckett says. "And the parallel proceedings of OSHA or civil lawsuits by people who are injured or whose loved ones have been killed isn't doing the trick."
"At some point we're going to have to decide whether these incidents are just accidental ... [or] somebody's really making horrendous decisions that approach a criminal level," says Field at Purdue, who is often enlisted as an expert witness in grain death lawsuits and as a safety consultant for the grain industry and OSHA.
"It's intentional risk-taking on the part of the managers or someone in a supervisory capacity that ends up in some horrific incidents," Field adds. "The bottom line is if you ask them why they did it, it was because it was more profitable to do it that way."
Field counts more than 660 farmers and workers whosuffocated in nearly 1,000 grain entrapments since 1964 at both commercial facilities and on farms. Nearly 500 died in grain bins. One in four victims was younger than 18.
OSHA's Michaels claims that the agency's aggressive enforcement and expanded grain-danger awareness efforts are making a difference. Entrapments and deaths are down significantly since 2010. But the harvest the past two years is also down, he admits, and the years since 2009 have been drier.
In Mount Carroll, Piper says he struggles with indelible images of death and unforgettable sounds of panic. He visits the graves of Whitebread and Pacas in the town's Oak Hill Cemetery as often as he can.
Whitebread's grave is marked with a framed photo on a metal post, showing a sandy-haired boy with a grin so big he seems like the happiest kid on Earth.
On a cold and cloudy day in January, Piper pulled off his gloves, set them on the soft, wet earth and kneeled on them, leaning forward, face to grave. He prayed and talked silently to the friend he couldn't save.
Then he stood up and walked across the cemetery to another grave. It had red plastic flowers and a small plastic headstone sitting cockeyed. Again, he knelt, face to grave, reaching out to Pacas.
"When I touch the ground I just feel connected with him," Piper says. "It's just me ... letting him know what's going on. I think he'd want me to move on from this."
Moving on, Piper says, requires a proper headstone for Pacas, the closest friend he ever had. Annette Pacas says she can't afford one, so Piper wants to try to raise the money.
"I felt guilty that I got Alex the job, that I wasn't able to save Wyatt, that I wasn't able to save Alex," he says softly. "I think that'll be like a living amend -- a way to pay Alex back."
Chris Hamby of the Center for Public Integrity contributed to this report.
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