Published October 28th, 2016 at 10:48 AM
ATCHISON, Kan. — Five years later, the hurt is still raw for the families of six men killed when a grain elevator blew up on the banks of the Missouri River here. 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.
Bartlett, which declined comment for this story, strongly denied the accusations and questioned the government’s findings.
But nothing much has happened since. Five 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.
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 the investigations of Bartlett resigned in April 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 the 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.
On Friday, Polsinelli issued a letter saying that the firm did indeed take steps to separate Grissom from the case. In addition, “Barry was screened from any participation and was apportioned no part of any fee concerning any matter being handled by Polsinelli lawyers that was pending before the Kansas U.S. Attorney while Barry held that position.”
Some of the families say they aren’t surprised by the lack of action in the case.
“None of this surprises me at all,” said Burke’s husband, Mark. “They were just blowin’ smoke up our skirts. Now it’s five years old; everybody’s forgot.”
In an effort to make sure that doesn’t happen, one of the families has planned a memorial service for 7 p.m. Saturday, Oct. 29, at the Veteran’s Memorial along the Missouri River in Atchison.
Oct. 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.”
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 are among the most dangerous workplaces in America — the last explosion was in Iowa this spring, injuring two workers — 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 in St. Joseph, 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,” 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, 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 Flatland posed to the families.
“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.
Bartlett and OSHA debated the case in legal briefs for a year.
That’s when OSHA asked the U.S. attorney in Kansas to investigate Bartlett for possible criminal charges, which are rare in such cases. It could have been a strategic move or a genuine quest for justice, or both.
But either way, the stakes for Bartlett had just 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 the whole civil case on hold for the remainder of the criminal investigation, it also changed the whole 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.”
Bartlett pledged to cooperate in the criminal investigation, but the company — unwittingly or not — took several actions both before and after the criminal referral that would hurt those efforts.
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.
The witness interviews took place at a location chosen by Bartlett’s lawyers, who were present for the interviews and had a stenographer there, Warner said. “That is an atypical witness scenario,” Warner added, saying he ended the interviews as a result.
Warner said one of the difficulties in gathering enough evidence for criminal charges is that OSHA didn’t investigate the explosion as though it could become a criminal matter.
“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.”
Bartlett had at least one meeting with the U.S. attorney’s office early on, while family members said they were kept pretty much in the dark, despite promises to the contrary.
As for OSHA, the agency did a thorough investigation and shouldn’t be blamed for problems in the criminal case, according to one OSHA source, who agreed to talk on background. He said OSHA couldn’t have prevented Bartlett’s demolition of the blast site.
But the two agencies involved in the case — 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 unveiled a joint agreement in December, 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 may have come too late for the Bartlett case.
A notice about the new joint effort went out to all U.S. attorneys around the country, including to Grissom, who was ultimately in charge of the criminal side of the Bartlett investigation.
One family member, Kevin Bock, who has relentlessly dogged Grissom’s office to take action, used the announcement as another opportunity to make his point.
Bock, the stepfather of victim Chad Roberts, wrote Grissom in April, telling him he could “send a message to all corporations and businesses in Kansas, and to the rest of America.”
“You have a chance to leave a legacy of aggressively prosecuting all federal offenders, whether it may be a common criminal or corporations who put profits above employee safety,” he said.
But by then, Grissom was leaving office for his new position at Polsenelli, the firm that had defended Bartlett.
According to Polsinelli’s website, one of Grissom’s jobs, given his history as a former U.S. attorney, is to advise companies that find themselves targeted by federal regulators.
It could be a coincidence, some family members agree, but others wonder how such an obvious potential conflict could have been overlooked.
Grissom also said he would meet with the families to address concerns they may have about his new job.
Under Grissom’s temporary replacement at the U.S. attorney’s office, the Bartlett investigation apparently continues, at least for the moment, in some form or other.
A five-year deadline for filing criminal charges likely applies in the Bartlett case, says Booth Goodwin, a former U.S. attorney in West Virginia. Goodwin successfully prosecuted the chief executive of Massey Energy, which operated a coal mine where 29 workers died in a 2010 explosion.
Unless the U.S. attorney in Kansas can prove that any criminal activity continued in the months after the 2011 Atchison explosion — pushing the deadline forward — the criminal case is likely over as of Saturday, the five-year anniversary of the explosion, Goodwin said.
“The U.S. attorney’s lengthy squatting on this case precludes pursuit of civil or administrative remedies,” 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.
Federal criminal prosecutors in Kansas have asked to meet with the families at 9 a.m. on Nov. 10 in Topeka, Kansas, and for the most part, the families aren’t hopeful. In the absence of a criminal case, negotiations will eventually begin that may well lead to a reduction in the $406,000 in proposed civil fines.
The families will likely be 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.
“It just breaks my heart,” said Inga Klahr, whose husband, Darrek, died that day, “that my boys have to go through this.”
— Mike McGraw is a Special Projects Reporter for KCPT’s digital magazine, Flatland. Follow his stories online at FlatlandKC.org and @FlatlandKC.