OSHA pursues questions in Nebraska grain elevator death

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Posted: Friday, July 5, 2013 12:00 am

The Occupational Safety and Health Administration wants more answers from the Talmage, Neb., grain elevator where a worker was killed in January, but the company's lawyer opposes the inquiries, terming them a “fishing expedition” out to hang his clients.

The U.S. Labor Department, OSHA's parent agency, filed papers in U.S. District Court in Omaha late last month asking for an order requiring the Farmers Cooperative Co. manager and assistant manager to answer questions about health and safety practices.

Those questions were opposed by the company's lawyer during a June deposition at which he counseled his clients to only answer questions related to the Jan. 29 death of a worker struck by a truck while directing traffic.

The legal tussle between OSHA and Farmers Cooperative heated up in May. That's when subpoenas were sent to the top two managers, leading to a June 5 deposition. There, the court documents say, the managers answered queries about the death of Roger Teten, killed after a truck backed into him.

Company lawyer James Luers, however, counseled his clients to not answer any general questions about the elevator's health and safety practices, calling them a “fishing expedition” that would only lead to OSHA citations for matters unrelated to the worker's death.

“Unless OSHA can tell me they're not going to talk about violations or they're not going to anticipate sending citations ... we're not going to testify about” matters unrelated to the death, the court document cites Luers as saying at the deposition. “And every time the management has interviewed in the past, they (OSHA) utilize that interview to support their citations. And quite frankly, it's unfair.”

Not so fast, OSHA has said in the court filing. The agency said its subpoenas are valid, authorized by Congress long ago as a civil investigative tool.

“The United States Secretary of Labor has broad power to investigate OSHA compliance and to issue subpoenas,” the court papers say.

Part of the process envisioned by Congress, the papers say, is the use of the federal court system to enforce compliance with OSHA subpoenas. Those ignoring them can be found in contempt, the filing says, and contempt findings can result in penalties to include fines and jail time.

Luers, the court papers said, went on to say at the June deposition that the legal basis for his objection was the Fifth Amendment right against self-incrimination.

The agency wrote that there are no criminal stakes at issue to which the Fifth Amendment would apply; the procedure is a civil administrative one. The only criminal proceedings undertaken by the agency, court papers say, happen when companies have improper advance notice of an inspection, file false paperwork or willfully violate regulations that lead to a worker death.

None apply to the questions Farmers Cooperative managers are refusing to answer, OSHA said in the filing.

“A blanket objection to the issuance of an administrative subpoena based on the Fifth Amendment privilege against self-incrimination is not a viable defense,” OSHA said in the court papers.

The matter is now in the hands of a federal judge.

As for Luers, the Lincoln attorney who is fighting OSHA, he is steadfast in his opposition. He said in an interview with The World-Herald that the cooperative provided two large notebooks full of documents about the death. The two managers, he said, answered questions about it in June for three hours, repeating many of the same ones they gave during the initial OSHA inquiry immediately after the fatality.

“It became clear that OSHA simply wanted to try and make a case for violations against the co-op, based upon answers to their questions,” Luers said in an emailed response to questions. “I advised my clients at that point to not answer further. We believe we have fully complied with OSHA's administrative subpoenas and intend to contest OSHA's overly aggressive tactics.”

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