ATCHISON, Kan. — The families of six men killed when a grain elevator blew up on the banks of the Missouri River here in 2011 have now waited well over five and a half years for closure in the case.
But the hurt is still raw, they say; for them, it could have happened yesterday.
“You wake up in the morning, and then you realize it’s not a bad dream — it’s your life,” said Eddie Burke, who lost her 24-year-old son, John, that day. “I don’t dream about John much, but when I do, I can smell him, you know, and you feel him, and you wake up and it’s like it’s that day all over again.”
Within months of the blast, federal safety inspectors accused the elevator’s owners, Kansas City-based Bartlett and Company, of knowingly ignoring safety requirements that could have prevented those deaths.
Indeed, while workplace deaths at grain elevators have declined significantly since the 1980s, the elevators that dot rural America remain among the nation’s more dangerous workplaces.
The tiny particles of grain dust that float through the air are highly combustible and can cause massive explosions, like the one in Atchison.
Bartlett, which has consistently declined comment since its initial reactions to the case, strongly denied OSHA’s allegations and immediately questioned the government’s findings.
But nothing much has happened since. More than 5 ½ years later, no one has been cleared or convicted. No clear cause has been pinpointed; no blame has been finally laid; no fines have been paid and no one has gone to prison.
“I think it stinks that…this case is still not resolved,” said Ron Hayes who lost his son, Pat, in another grain elevator accident years ago. Hayes, who has counseled many other families awaiting closure in such cases, added, “They are still suffering going on six years. This travesty of Justice cannot continue.”
OSHA officials said that a status conference on the case has been scheduled for August 4 – which would be five years and nine months after the explosion.
Asked to explain the lengthy delays in the case, an OSHA spokesman said, “every inspection is complex in nature…Once the case becomes litigated there can be many actions taken by multiple parties and there is no set time established for an OSHA case to be completed in the legal process.”
The spokesman said he was unaware of statistics that would indicate whether the delays in the Bartlett case set a dubious record for such cases.
And that has left Burke and her fellow survivors with nothing but their ever-present grief. With the passing of years, some families have become nearly as angry with the system that was supposed to prevent and police such tragedies as they are with the company they were told had caused it.
In addition, some families are frustrated that the top prosecutor involved in an explosion-related criminal investigation of Bartlett resigned in 2016 to take a job with a law firm that helped defend the company in the aftermath of the blast.
The prosecutor, former U.S. Attorney Barry Grissom, said that he had no idea that his new employer had represented Bartlett. And when he learned of it, he alerted ethics advisers at the firm and the Department of Justice.
In the end, he said, he and his new firm agreed he would have no involvement with cases relating to Bartlett or anyone else he was connected to in his duties as U.S. attorney for Kansas.
A Deadly Spark
October 29, 2011, was a crisp Saturday, and Bartlett’s Atchison elevator was brimming with corn.
Rail cars were lining up on a siding at the foot of the elevator, on the banks of the Missouri River in southeast Atchison. Grain dust, which can explode with more force than black powder, hung thick in the air.
Just before 7 p.m. and without warning, two fireballs blew through the top and the bottom of elevator, blasting holes in the silos and igniting a half-million bushels of corn.
The force of the blast hurled hunks of concrete and steel reinforcing rods 600 feet across the river.
It twisted a metal stairway 45 degrees, blew ductwork from its moorings and dislodged urinals from the walls. Cracks in the concrete indicated the whole building shifted.
When the smoke finally cleared, rescuers found the bodies of six men. Four of them were Bartlett employees: Chad Roberts, 20; Curtis Field and Ryan Federinko, both 21; and John Burke, 24.
Two other men, grain inspectors Travis Keil, 34, and Darrek Klahr, 43, were also killed.
Two other workers were seriously injured.
“If I had a wish,” said Chad Roberts’ mother, Zoe Bock, “I would wish that no parent would ever have to bury their child.”
Searching Through The Rubble
As in all work-related deaths, inspectors for the U.S. Labor Department’s Occupational Safety and Health Administration (OSHA) were on the scene in hours.
Despite the fact that grain elevators have historically been among the most dangerous workplaces in America —a recent explosion in Wisconsin killed three and injured 13 – it would be OSHA’s first visit to Bartlett’s Atchison elevator, which by then had been around for decades.
In the years leading up to the blast, Bartlett had had a contentious relationship with OSHA. The agency cited the company for safety violations in 2007 at its grain elevator in St. Joseph, Missouri, after a worker fell to his death there, and again after a 2010 inspection at its Walsh, Colorado, elevator, according to OSHA’s web page.
Three years before the Atchison explosion, Bartlett refused entry to OSHA when one of its inspectors showed up at the company’s Moscow, Kansas, elevator, according to court records, prompting the agency to seek a federal warrant.
After a five-month investigation of the 2011 blast, OSHA proposed $406,000 in fines against Bartlett, about $67,000 per death, for what it called serious and willful violations of federal safety standards.
In what the company would later describe as an unwarranted “public shaming,” Obama Administration Labor Secretary Hilda Solis declared that Bartlett’s disregard for the law led directly to “a catastrophic accident and heartbreaking tragedy for the workers who were injured or killed, their families and the agricultural community.”
One of the country’s largest privately held companies, Bartlett hired its own lawyers and experts, who declared that OSHA’s citations were vague and that its rules were unreasonably costly. There were no violations, Bartlett said, and even if there were, they were minor or the result of “unforeseeable employee misconduct.”
As both sides jockeyed for position, the families of four of the victims sued Bartlett officials personally in Jackson County, Missouri, where the company is headquartered.
They argued that Bartlett continued to operate the elevator at capacity despite known problems.
Those families accepted an undisclosed monetary award, part of an agreement that allows Bartlett to deny responsibility. It also prohibits the families from making disparaging remarks about the company.
But money was never the point, some family members say.
“I don’t want money. I want a dad,” 17-year-old Teagan Keil said in a heart-rending email responding to questions posed to the families by a reporter.
“Now I have to message him on Facebook while I’m bawling my eyes out and beg for a reply!”
Two years after the Atchison explosion, another Bartlett worker was seriously injured at the company’s Statesville, North Carolina, elevator, leading to more alleged safety violations and penalties from OSHA, according to OSHA’s website.
Some of the violations were similar to those OSHA found in Atchison.
OSHA’s Ace In The Hole
Bartlett and OSHA debated the case in legal briefs for a year following the initial blast.
That’s when OSHA asked the U.S. attorney in Kansas to investigate Bartlett for possible criminal charges in the case, which are rare. It could have been a strategic move or a genuine quest for justice, or both.
But either way, the stakes for Bartlett had gotten much higher.
The $406,000 in OSHA fines, a potential civil penalty, were proposed against the company at large and held no one individual responsible for the explosion.
And while the criminal referral put OSHA’s proposed civil fines and citations on hold for the remainder of the criminal investigation, it also changed the tenor of the case.
If federal prosecutors found that Bartlett “willfully” violated a safety standard that resulted in the deaths, it could be fined $500,000, and top Bartlett officials could be sentenced to up to six months in prison on a federal misdemeanor.
The referral, which gave some family members hope, hit Bartlett like a bolt from the blue.
“Bartlett was taken completely by surprise by OSHA’s referral of the case to the U.S. attorney,” the company said in documents filed in the case on Dec. 14, 2012, a month after the referral. “There is no legitimate basis for (the) referral.”
“Bartlett Grain has done everything in its power to learn the truth about this accident,” the company said in an earlier news release issued in March 2013, “and we look forward to proving that the OSHA allegations are untrue and unfounded.”
By the time the U.S. attorney’s criminal investigation got underway, more than a year after the blast, Bartlett had already torn down its Atchison elevator. From the perspective of a criminal case, the crime scene was gone.
Later, when federal officials sought to depose a Bartlett worker who witnessed the blast, company lawyers argued against it, citing a letter from his doctor that he was too traumatized to answer questions.
Efforts to interview other witnesses were strained, said one of the criminal case investigators, assistant U.S. Attorney Mike Warner, who resigned from the office in August 2014.
“It’s unfortunate the two agencies don’t work together from day one,” he said. “It’s hard to walk back the dog two years later.”
But the two agencies — the U.S. Departments of Labor and Justice — had known for years that such a lack of coordination had stymied previous investigations.
In fact, they had by then unveiled a joint agreement announcing “a renewed commitment by both the Department of Labor and the Department of Justice to utilize criminal prosecution as an enforcement tool to protect the health and safety of workers.”
But it came too late for the Bartlett case.
Ultimately, Grissom’s replacement as the U.S. Attorney for Kansas told the families in November last year that his office had finally determined that there would be no criminal charges in the case.
The families expressed their disappointment in that opinion at the time <see video here>, but it also put the case back at square one.
With no criminal charges, OSHA and Bartlett are back to negotiating over the agency’s proposed citations and $406,000 in civil fines. Those negotiations have been going on for nearly eight months now.
The scheduled August 4 status conference may help determine how much longer the families of the victims will have to wait for closure.
A Looming Deadline
The U.S. attorney’s “lengthy squatting” on the Bartlett case precluded the pursuit of civil or administrative remedies against the company, said Jeff Ruch, executive director of Public Employees for Environmental Responsibility, a nonprofit advocacy group. “It should have promptly gotten out of the way,” he said.
Thanks to the delays and the lack of coordination in the case, the families of the victims have been left to wander in a sort of purgatory between two branches of the same federal government.
One branch — OSHA — tells them their loved ones’ deaths could have been prevented if only the company had followed the rules. And the other — the U.S. attorney’s office — declines or is unable to prosecute individuals linked to the deaths.
Now the clock has been re-set to zero as the final negotiations to close the case get underway. And it’s unclear how, if at all, the pro-business philosophy of the Trump administration will affect those talks.
In the meantime, says Inga Klahr, whose husband, Darrek, died that day, “It just breaks my heart that my boys have to go through this.”
Mike McGraw is a Special Projects Reporter for KCPT’s digital magazine, Flatland, a Harvest Public Media partner.