A Gainesville company claims an Occupational Safety and Health Administration officer is “harassing” and threatening arrest for not complying with a warrant it says is overbroad. The agency’s officers have told the federal court that the company is creating roadblocks to their investigation.
This has been the past three months as Foundation Food Group and OSHA have waged legal battle over warrants to inspect the processing plant’s facilities following the nitrogen leak in January that killed six people.
The dispute involves numerous issues, including the expansion of the probe in the wake of additional employee complaints, inspectors who say they've been denied access, and a company which says its rights are being violated.
The Times delved into the filings from both sides after court documents became publicly available June 3.
Seeds of dispute
Foundation Food Group's pushback against OSHA begins with the day of the leak at the Memorial Park Drive poultry processing plant.
The Gainesville plant claims the Jan. 28 entry violated the company’s Fourth Amendment right against unlawful search and seizure.
OSHA’s compliance safety and health officer, Robin Bennett, told Foundation Food Group that she and another officer entered the property around 3 p.m. Jan. 28 and took more than 200 photos. Bennett said the inspectors entered the building after speaking with a manager, though which manager is not named.
The plant's vice president of operations filed a declaration stating he confirmed that none of the managers consented to the OSHA officer entering the property Jan. 28.
“OSHA’s photos also show that OSHA accessed (Foundation Food Group’s) private data and risked altering or losing critical evidence that experts will use to determine the cause of the accident, which might bring some answers to those who lost loved ones in this fatal accident and prevent future loss of life,” according to the Gainesville plant’s legal filings. “Specifically, OSHA either tampered with the line 4 freezer’s digital control panel or stood by while someone did and documented the act with photos that depict different screens from the control panel that would have required someone to manually manipulate the panel to move from one screen to the next.”
Though the deaths of the six Foundation Food Group employees have been the most noteworthy event, the probable cause for a warrant to expand the probe has focused on other complaints.
According to an order signed June 3 by U.S. Magistrate Judge J. Clay Fuller concerning an April 20 warrant approval, after OSHA began investigating the deadly leak, it “received written and oral complaints from workers concerning other potential violations at the plant, including an ammonia leak from a different refrigeration system than the one involved in the January incident.”
A worker complained about the ammonia on March 11.
Foundation Food Group said its management allowed workers to go to the breakroom and go home for the day if they did not feel safe.
“As OSHA knows, even an extremely small amount of ammonia can cause a strong smell that is irritating and does not indicate a hazard,” according to the company’s motion. “The technician’s concurrent reading confirmed no hazard existed. Later that day, someone called (Hall County Fire Services) who also came out and took readings and found no presence of ammonia or other hazard. Despite providing OSHA that information, OSHA came onsite a day or two later asking to expand its investigation to include the plant’s entire ammonia system.”
In a new warrant application presented by the U.S. Attorney’s Office, inspectors sought to look at:
The locations within the worksite where ammonia refrigeration and ammonia storage systems are located
All alarm system intended to provide early warning of releases of hazardous chemicals
All emergency exits and means of egress
The production lines to conduct noise measurements
Line 1 for purposes of evaluating the ventilation system
Conducting air-quality monitoring and evaluating personal protective equipment
Emergency action plans and training records
All required safety and health records required to be kept in compliance with the (Occupational Safety and Health Act)
Interviews of individuals with knowledge of the potential violations identified above
Any violations in plain view of the inspectors while performing their work
Records, procedures and policies pertaining to the potential violations identified above
The judge approved the warrant April 20, and OSHA inspectors visited the Gainesville plant two days later. OSHA claimed that all work then stopped and OSHA was told it would not resume until the company’s attorney arrived.
“After (the attorney) arrived, Foundation Food claimed that it had already completed all work planned for that day on line 1, where testing was to take place,” according to the paperwork filed in opposition to the attempt to stop the search warrant.
“(Foundation Food Group) filed its emergency motion to stay the following day,” according to the judge’s order.
Records and other access
OSHA also claimed there were other roadblocks put up over access to records.
“OSHA inspectors are currently attempting to execute the warrant, but Foundation Food (Group) is refusing to allow OSHA inspectors to review many of the records they seek,” according to a supplemental administrative inspection warrant application made by the government April 23. “Their argument is that these records are kept in a different building in the complex, which has a different mailing address and therefore is not within the scope of the original warrant.”
OSHA also alleges the company would not allow inspectors to use the copy machine for some documents or take records to a nearby copy shop.
In an emergency motion filed April 23, Foundation Food Group said: “The investigation has involved dozens of entries into the facility to conduct inspections, more than one hundred interviews, many of which (Foundation Food Group) organized and facilitated at OSHA’s behest including providing OSHA multiple offices for conference space for weeks and providing OSHA over a thousand pages of documents in response to informal requests for documents and two administrative subpoenas,” According to the company’s motion, “OSHA has continuously tried to expand this investigation in many ways despite entering into a site agreement that defines the relevant area for inspection.”
Foundation Food Group also said that it had already voluntarily provided emergency plans and training records, though a Feb. 1 subpoena also requested surveillance footage, invoices for liquid nitrogen and alarm data.
“Without being more specific or having facts that relate to all such records, the warrant is overbroad and should be quashed,” the company argued.
Foundation Food Group said in its filings that OSHA’s search had already “imposed considerable costs on (Foundation Food Group) in terms of lost employee time, including management time, attorneys’ fees and losses in production and employees.”
The human resources manager also filed a declaration stating she provided a list of 166 Foundation Food Group employees with contact information.
But OSHA inspectors say access to employees was unnecessarily difficult.
A declaration filed by Bennett said the employees interviewed April 23 were required to stay on the line while being interviewed by the OSHA officers.
“This made interviews more difficult because the production areas are loud and distracting, with noise levels exceeding 94 decibels,” according to the government’s filing.
The OSHA officer also claimed that Foundation Food Group’s attorney and manager were “looming over and intimidating the employees as we spoke to them,” with many employees indicating they were uncomfortable.
Foundation Food Group said inspectors only spent a few hours on April 22 investigating, which included taking noise samples. Another pair of investigators arrived at 8:30 a.m. April 23, spent a couple of hours in the plant and told the company after lunch that they were done for the day, according to the company.
Foundation Food Group pushes back
In its motion to quash the warrant, Foundation Food Group claimed the government lacked probable cause and relied on information obtained in OSHA’s entry into the building the day of the leak, which it contends was illegal.
As the probe has expanded, Foundation Food Group has also claimed in its legal filings that Bennett has “harassed” the company and “demanded to inspect something entirely outside of the warrant and told the marshals to remind FFG that if they interfered they would be arrested.”
OSHA did not answer questions emailed by The Times regarding claims made in these legal filings.
“This investigation is still ongoing and OSHA cannot discuss details of the investigation while it is open,” Department of Labor spokesman Eric Lucero wrote in an email.
In the motion to quash the warrant, the Gainesville plant also describes a defect in equipment provided by another company that allegedly led to the nitrogen leak.
The company explains how the chicken travels through liquid nitrogen at -360 degrees for eight seconds in an immersion freezer. The poultry processor said it appears that on Jan. 28 that the liquid nitrogen overflowed the immersion freezer.
OSHA, the U.S. Chemical Safety Board and Messer, the company that leased the nitrogen equipment to Foundation Food Group “jointly conducted extensive post-incident testing of the line 4 freezer and discovered that the single safety device that monitored the (liquid nitrogen) level in the immersion freezer was damaged,” according to Foundation Food Group’s motion.
“Specifically, it’s a bubbler tube that was bent in such a way that it failed to monitor when the (liquid nitrogen) level was too high and in danger of overflowing,” according to the motion. “This bubbler tube was not protected from being bent and there was no redundant or backup system to detect a high (liquid nitrogen) level or otherwise prevent a catastrophic overflow.”
Lawsuits filed on behalf of the victims have claimed negligence on the part of Messer led to the leak.
As investigations are still ongoing, the facts are not fully known, and Messer will not speculate on the cause of the incident.Amy Ficon, Messer spokeswoman
“As a company that values safety and reliability for our customers and our communities, we take these allegations seriously,” Messer spokeswoman Amy Ficon previously told The Times. “As investigations are still ongoing, the facts are not fully known, and Messer will not speculate on the cause of the incident. Messer continues to cooperate fully with the investigating authorities, and we are committed to understanding what happened, learning from the investigation findings, and doing our part to help prevent an incident like this from happening again.”
Foundation Food Group declined to answer questions sent by The Times, citing the ongoing litigation.
U.S. District Judge Richard W. Story agreed Tuesday, June 8, with the magistrate judge’s ruling on the warrant and denied the company’s emergency motion for reconsideration.
Story’s ruling stated that delaying the warrant’s execution is not in the interest of the public and would harm OSHA’s ability to investigate:
“The record supports OSHA’s concern that conditions in the (Foundation Food Group) plant pose a threat to the health and safety of employees, and continued delay in OSHA’s ability to review these conditions risks further harm to these same employees.”