By The United States Attorney’s Office Staff, Colorado. From Offices of the United States Attorney’s. Originally published on August 5, 2011. Original article.

Tempel Grain Elevators, represented by company Vice President Kelly Spitzer, pled guilty and was sentenced today to a term of 5 years probation, with special obligations attached to that probationary term, for violating OSHA regulations resulting in death, the United States Attorney’s Office and the U.S. Department of Labor announced today.  The guilty plea was tendered and the sentence pronounced by U.S. Magistrate Judge Boyd N. Boland.  The company was originally charged by Information on July 26, 2011.  According to the Information, on May 29, 2009, Cody Rigsby, then 17 years old, was killed while working in a Tempel Grain Elevator in Haswell, Colorado.

 

Magistrate Judge Boland sentenced Tempel Grain to serve 5 years probation, during which the company is required to pay $430,000 to MetLife Tower Resources Group, for the purpose of purchasing a structured annuity to benefit the health, welfare and education of the victim’s heirs, recognizing that these funds are designated as personal injury damages for tax purposes.  The victims heirs include Cody’s mother, who will receive $330,000 and Cody’s four siblings, who will each receive $25,000.  Additionally, Tempel Grain will pay $70,000 in certified funds to Cody’s mother, recognizing the funds are designated as personal injury for tax purposes. The total funds tendered by Tempel Grain is $500,000, for the benefit of the victim’s family, as a condition of probation.

In addition to the monetary compensation, Tempel Grain is required to follow other special conditions while on probation.  Those special conditions include: 1) The defendant shall not willfully violate the law, including applicable OSHA regulations; 2) The defendant shall not employ persons under the age of 18 to work at its grain elevator sites; 3) The defendant shall provide new employees safety training as required by OSHA regulations; 4) The defendant shall provide refresher safety training to its employees biannually in addition to its obligations under the applicable OSHA regulations; 5) The defendant shall develop a procedure that includes harnesses and lanyards or similar safety equipment in anticipation of bin entry at any grain elevators; 6) The defendant agrees to pay $50,000 in fines and penalties to OSHA as a settlement of administrative fines and penalties assessed against the defendant in the OSHA administrative action; 7) The defendant shall comply with all provisions of the administrative settlement agreement.  Should Tempel Grain violate any of the terms or conditions of probation they would be potentially liable for up to another $500,000 fine.

According to the stipulated facts contained in the plea agreement, it was common practice for Tempel Grain Elevators to hire high school-aged teenagers from the local area to work at their various grain elevators.  One of the company’s managers assigned Cody Rigsby, the victim, and two other teenagers to work at the Haswell Grain Elevator.  The teenagers were assigned various hazardous tasks, which included bin entry, “Walking the Grain”, working in and around unguarded mechanical equipment, unsafe electrical devices, confined spaces, and exposure to explosive grain dust. Employees regularly entered the bins to “walk down grain”, the practice of walking around the edge of a bin to dislodge clumps of grain while grain was flowing from the bin, without the appropriate safety harness with lanyard. The defendant knew about such practices and nonetheless failed to comply with OSHA’s grain handling facilities regulations. Tempel Grain Elevators, knowingly and willfully failed to provide safety and health training to these teenagers despite three of the four teenagers having three months or less work experience in the grain industry.

Due to the lack of safety and rescue equipment on site, the teenagers entered the bins without the benefit of personal protective equipment such as a body harness and lanyard.   The only instructions provided to the crew were to watch out for one another and be careful. At about 12:45 p.m. on May 29, 2009, Cody Rigsby and another boy entered Bin 21 to clean it out. Cody was allowed to enter Bin 21 despite knowing that the bucket elevator was not locked out and grain was flowing from the bin. While inside the bin, Cody was engulfed by the flowing grain and sucked under where his chest was crushed and he died of asphyxiation.  Despite the efforts of Cody’s co-workers, they were unable to locate and rescue him.  This fatality was preventable and occurred due to the lack of safety and health training, personnel protective and rescue equipment, unsafe work procedures and a lack of on-site emergency responders.

“Today’s resolution serves as a reminder to the business community that employee safety must always be first priority,” said U.S. Attorney John Walsh.  “Cody Rigsby was only 17 years old when he died in a tragedy that need never have occurred.  Today’s guilty plea and sentencing properly holds the company responsible for failing to comply with safety rules that would have prevented Cody’s death, and also ensures that his family can move forward financially to the fullest extent possible.  And we hope the guilty plea and sentencing will help the entire Haswell community begin to heal from this terrible event.”

“This is a terrible tragedy that should never have happened,” said Assistant Secretary of Labor for OSHA David Michaels.  “We are pleased to reach this agreement.  Money won’t bring back this young man’s life, but we can make every effort to ensure that these terrible tragedies don’t happen again.  We will use any means – from tough enforcement to aggressive outreach efforts – to put this industry on notice that we will not tolerate risking workers lives in hazardous situations that are entirely preventable.  We truly appreciate the excellent work done by the U.S. Attorney’s Office in Denver in this tragic case.  We particularly would like to thank Assistant U.S. Attorney Jaime Pena for his untiring efforts in this case.”

This case was investigated by the U.S. Department of Labor, Occupational Safety and Health Administration.

The case was prosecuted by Assistant U.S. Attorney Jaime Pena.