Dec. 12--MIDDLETOWN -- A Butler County Sheriff's Office investigation of the failed rescue of an employee at a Middletown cement company in August has found no criminal wrongdoing, according to the county prosecutor.
Timothy Taylor, 39, of New Carlisle, died on Aug. 6 after he became buried in more than 8,000 pounds of fly ash, a substance used to make cement, inside a silo at Central Ready Mix, 4714 Oxford State Road. The Middletown Division of Fire, the Butler County Emergency Management Agency's Technical Rescue Team and the Monroe Fire Department assisted in the rescue attempt, according to incident reports.
The U.S. Department of Labor's Occupational Safety and Health Administration called Taylor's death "a terrible, preventable tragedy" and issued 10 serious safety violations and proposed $55,800 in fines against the company last month.
Prosecutor Michael Gmoser told the Journal-News he opened a months-long investigation into the rescue operation that failed to save Taylor after being contacted by a private citizen "who believed there was some type of criminal action" that took place during the rescue attempt. Gmoser declined to release the name of the complainant.
"My office conducted a thorough investigation, and there was a determination that there was no criminal liability according to Ohio law for a failed rescue attempt," Gmoser said.
The prosecutor has denied this newspaper's request for copies of the investigative report stating it is privileged information.
"It is privileged because someone could be considered to be an uncharged suspect and it would be unfair to to that person for the information to be published," Gmoser said. He declined further comment.
Two of the three commissioners confirmed receiving a report from Gmoser on the investigation, but both declined to comment on specific content in the documents. Commissioner T.C. Rogers said he had the prosecutor's report but had not yet read it. Commissioner Cindy Carpenter said she had read only parts of the report, which she referred to as "unusual."
"I read enough of it to ask (County Administrator) Charlie (Young) about it," Carpenter said. "It was not typical. Normally, I have seen reports like that from the coroner's office."
Young would only say that commissioners had received "confidential information from our attorney."
Commissioner Don Dixon could not be reached for comment.
Jeff Galloway, director of the Butler County EMA, said he was aware of the criminal investigation, but has not seen the report and couldn't comment.
Bill Wilkerson, director of OSHA's Cincinnati office, called engulfment one of the "six major hazards" present in silo-type storage facilities. He said the fatal accident "underscores the importance of complying with safety precautions," such as using harnesses and lanyards.
"Employers are responsible for identifying hazards and ensuring workers follow proper procedures to prevent injury or death," he said.
Taylor entered the cone-bottom silo in an attempt to break up clumps of fly ash that had clogged the bottom discharge, OSHA officials said. After attempts to dislodge clumps with a metal bar and air hose did not work, he climbed into the silo, without a harness and lanyard, and devoted several hours to breaking up the clumps before being engulfed, officials said.
Taylor, who had worked at the company for 15 years, died from asphyxia and his death was ruled accidental, according to the Butler County Coroner's Office.
Ten serious violations involve several violations of OSHA's confined space permit entry requirements, including failing to evaluate a workplace for permit-required confined spaces; develop a written permit space entry program, including signage; create measures to prevent unauthorized entry; provide necessary equipment; train workers on procedures; and develop a permit issuance system and procedures for summoning rescue and emergency services.
Other violations include failing to ensure workers use harnesses with retrieval lines attached; address unsafe catwalks; correct an unguarded floor hole in the silo catwalk; and use flexible electrical cords properly. A serious violation occurs when there is substantial probability that death or serious physical harm could result from a hazard about which the employer knew or should have known.
Wilkerson said OSHA's investigative report can not be be released until the company has the chance to contest the citations and proposed penalties before the independent Occupational Safety and Health Review Commission.
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