On May 31, 2017, a grain dust explosion ripped through a corn mill owned by Didion Milling, a Wisconsin corn mill, killing 5 workers, Duelle Block, Robert Goodenow, Carlos “Charly” Nunez, Angel Reyes and Pawel Tordoff. Fourteen workers sustained injuries that ranged from minor to life-threatening.
Grain dust is extremely explosive and OSHA has a Grain Handling standard designed to prevent such explosions by requiring that both grain dust and ignition sources be controlled.
OSHA issued a $1,837,861 citation against Didion in November 2017 which the company contested. The citation included 17 willful violations of OSHA’s grain dust standard, one General Duty Clause violation and 4 serious violations. The Chemical Safety Board also issued a report on the causes of the explosion.
But not the end of the story.
Last May, a federal grand jury indicted the operator and six management officials of Didion Milling Inc. under nine criminal counts, including two counts related to willful violations of federal workplace safety standards for grain handling.
Last week, a Wisconsin jury convicted current and former Didion Milling Inc. officials of workplace safety, environmental, fraud and obstruction of justice charges.
Didion Milling Vice President of Operations, Derrick Clark, was convicted of conspiring to falsify documents, making false Clean Air Act compliance certifications as Didion’s “responsible official” and obstructing the Occupational Safety and Health Administration’s (OSHA) investigation of the explosion at the corn mill by making false and misleading statements during a deposition.
Former Didion Milling Food Safety Superintendent, Shawn Mesner, was convicted of participating in a fraud conspiracy against Didion Milling’s customers and conspiring to obstruct and mislead OSHA for his role in falsifying sanitation records used at Didion to track the completion of cleanings designed to remove accumulations of corn dust at the mill.
Clark and Mesner were convicted of participating in a conspiracy to falsify the cleaning log that required the company to record the performance of required grain dust cleanings. They also directed others to backfill entries for uncompleted cleanings.
Sentencing hearings have not yet been scheduled, but they may be seeing some jail time.
A fraud conspiracy conviction could lead to 20 years in prison, $1 million in fines and a requirement to forfeit assets derived from fraud. Convictions for conspiracy to commit federal offenses and other offenses range from five to 20 years in prison and up to $1 million in fines.
These convictions come a few weeks after Didion Milling pleaded guilty to criminal charges and agreed to pay $1 million in criminal fines and $10.25 million in restitution to victims of the explosion.
The case was a joint effort between OSHA, the Department of Justice and the Environmental Protection Agency.
Do Not Pass Go
OSHA is only able to pursue criminal prosecution of companies when a worker’s death is associated with a willful violation of an OSHA standard, as was the case here. Unfortunately, because the Occupational Safety and Health Act makes criminal convictions under the OSHAct only a misdemeanor, criminal cases are often not pursued by the Justice Department.
But in this case, Didion made a number of additional mistakes. Aside from killing 5 workers, they made their problems much worse by lying to OSHA. Lying to federal officials is a felony that can result in much harsher penalties than simply killing workers.
According to the DOJ press released, “Clark gave false and misleading testimony about his knowledge of problems with the dust collection system at Didion’s corn mill, his knowledge of explosion hazards and his knowledge of prior fires at the facility.”
I put 25 years in that place, I made them a lot of money. They’re back to making millions and they don’t look back to what happened to us.” — Dallas Oosterhof
As if that wasn’t bad enough, the company also violated the Clean Air Act and lied to EPA officials and falsifying documents. Another big mistake. Because EPA penalties are much more harsh than OSHA penalties. And then they followed up by lying to EPA as well.
A permit issued under the Clean Air Act required compliance by Didion Milling at its corn mill including the operation of baghouses equipment, which are designed to limit the release of particulate matter like corn dust into the environment. The permit also required a “responsible official,” a senior manager with authority, to periodically certify the mill’s compliance with air pollution control permit conditions and disclose known permit violations. Clark falsely certified Didion’s compliance without disclosing that baghouse logs – documentation on maintenance of baghouse equipment – had been systematically falsified to conceal permit violations.
Didion Milling sold its milled corn products to food and beverage manufacturers. Sanitation at food manufacturing facilities is necessary for food safety, and excessive accumulations of grain dust can cause food safety problems. Through deceptive means, including repeatedly presenting a falsified cleaning log to food safety auditors, Mesner conspired to deceive Didion’s customers about its sanitation practices. As food safety superintendent, Mesner directed operations personnel to falsify the log to make it appear as if the cleaning schedule was being followed.
The legal proceedings may be reaching a conclusion, but the impact of the explosion will never get better for many of Didion’s employees. Dallas Oosterhof worked at Didion Milling when the plant exploded. He was seriously injured.
Since the explosion, the site of the mill was rebuilt and is back to operating, but for Oosterhof and his family things will never be the same: he still suffers from debilitating medical issues he sustained from the explosion. His family has also been left bereft of his wages. Despite receiving disability compensation through social security, he said the long-term disability insurance he paid for through his job was denied.
“We don’t hear anything from them to see if you’re doing OK or anything. They sit there and preach about being a family-environment employer. The rich get richer, and the poor, the workers … I put 25 years in that place, I made them a lot of money. They’re back to making millions and they don’t look back to what happened to us.”
His wife, Rita Oosterhof, said less than a year after the incident her husband almost died in her bathroom, and she had had to revive him with CPR. Doctors said he had an arteriovenous malformation (AVM) in his brain as a result of the incident, noting he had head injuries from debris caused by the explosion. “They kept telling me he was going to get better, and he kept getting worse,” she said.
Currently, Oosterhof walks with the assistance of a crutch, and the left side of his body is partially paralyzed. Throughout all of his medical issues since the incident, Rita Oosterhof said Didion Milling never provided any support or assistance. She criticized the denial of his long-term disability claim through the company.
“We never got a dime from them,” she added. “How can they tell me he’s not disabled?”
Oosterhof says that Didion made a decision to pay OSHA fines rather than spend the money to eliminate known hazards.
But Wait, That’s Not All.
This wasn’t just an oops, one-off for Didion:
In December 2020, 52-year-old Randal Rote was killed on the job at Didion Milling after being engulfed in a grain bin. Osha issued proposed fines of $676,808 for 14 violations that the company is also currently contesting. The agency criticized the company for failing to learn from previous incidents.
Just a few months prior, according to Osha, a large grain shelf collapsed and nearly engulfed another Didion Milling employee who was cleaning the inside of a grain bin at the time.
Didion has not made a statement following the recent convictions, but last year the company called the accusations “unwarranted charges.”
What happened on May 31, five years ago, was a horrible accident, not a criminal act. While we have cooperated fully with the investigation since day one, we now must respond with a strong, vigorous defense for the company and our team. As a family-owned business for 50 years, we have a culture of safety and quality engrained in all we do. We take care of one another in the Didion family and we continue to invest in safety and quality because it is the right thing to do.”
Strange definition of a “culture of safety.” Killing workers and lying to federal officials about the events leading to those deaths. Then denying the disability claims of workers injured in the explosion.
Clearly those fines weren’t sufficient to get the company to completely overhaul its operations to make sure to really, really prioritize workplace safety. Because if they had, another worker wouldn’t have been killed three years later.” — Terri Gerstein
Terri Gerstein, the director of the State and Local Enforcement Project at the Harvard Law School Center for Labor, homed in on the real issue: “Clearly those fines weren’t sufficient to get the company to completely overhaul its operations to make sure to really, really prioritize workplace safety. Because if they had, another worker wouldn’t have been killed three years later.”
Indeed. Nothing sharpens the minds of employers more than a real possibility of facing jail time. Unfortunately, employers who only violate OSHA standards face only a misdemeanor under current law. Only when those violations are combined with violations of EPA regulations, or when local prosecutors go after employers for homicide — or when the employer makes the mistake of lying to federal officials — does an employer who kills workers face a realistic probability of jail time.
We’ll see if prison time sends the message — not just to Didion, but to all employers across the country who think they can get away with a slap on the wrist for endangering, injuring and killing workers.