When Prosecutors Press Criminal Charges Over Jobsite Accidents | ENR: Engineering News Record | McGraw-Hill Construction.

 

But if the civil penalty doesn’t seem to fit in a high-profile accident, prosecutors will press charges. For example, Manhattan District Attorney Cyrus Vance Jr. has won indictments against construction site supervisors in connection with the 2007 Deutsche Bank building fire, which killed two firefighters. He also won indictments against a crane operator and crane owner in connection with two tower-crane accidents that killed construction workers and city residents in 2008.

While such prosecutions aren’t new, these and other high-profile cases indicate a desire to hold business managers and corporations to a greater level of responsibility. In addition to the New York City prosecutions, England’s Crown Prosecution Service won a conviction in February in a jury trial in Winchester Crown Court against Cotswold Geotechnical Holdings Ltd. One of its employees, 27-year-old Alexander Wright, died in a trench cave-in in 2008. The company was sentenced to pay only a fine, a lenient penalty that was attributed to the firm’s principal, Peter Eaton, having cancer.

That trial represented the first successful prosecution under England’s corporate homicide statute, adoped in 2006.

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Xcel Energy knew about dangerous conditions deep inside a Colorado power plant tunnel where five maintenance workers died of smoke inhalation in a 2007 blaze, and it violated U.S. safety regulations by ignoring them, a federal prosecutor charged Thursday.

The most egregious: Lack of a rescue plan for emergencies, Assistant U.S. Attorney Jaime Pena told jurors in closing arguments of the trial of Xcel and a subsidiary, Public Service Company of Colorado.

“That’s why those guys died,” Pena said. “They had to know it was a dangerous place.”

Xcel attorney Cliff Stricklin insisted the utility followed the law and that a California-based contractor that employed the workers was responsible for their safety.

Stricklin told jurors that prosecutors were using hindsight to try to hold the defendants to a standard of perfection. The workers and their colleagues were doing the best they could on the challenging job of coating the inside of the tunnel with epoxy, he said.

“Ignorance, mistakes, accidents. None of these things are crimes,” Stricklin declared.

Xcel and Public Service Company are each charged with five counts of violating Occupational Safety and Health Administration regulations for the October 2007 fire inside a water tunnel at a hydroelectric plant. The Cabin Creek plant tunnel runs through a mountain near Georgetown, Colo., about 40 miles west of Denver.

If convicted, each company could pay fines of up to $2.5 million.

Pena said the workers maintained radio contact with co-workers and rescuers for nearly two hours as they struggled to escape the tunnel, bloodying their hands. They ultimately succumbed to smoke.

Killed were Donald Dejaynes, 43, Dupree Holt, 37, James St. Peters, 52, Gary Foster, 48, and Anthony Aguirre, 18. A flammable solvent they were using caught fire.

Prosecutors allege Xcel knew the solvent would be used on the project because it was listed on Xcel’s own project specifications. That made the company responsible for workers’ safety and for following regulations that include having a rescue plan in place, prosecutors say.

Defense attorneys argue Xcel did not know and that the contractor, RPI Coatings Inc., did — and that RPI was responsible for worker safety.

Stricklin said RPI created dangerous conditions inside the tunnel by allowing its workers to use at least 15 gallons of flammable solvent to clean sprayers. He argued that regulations only require that Xcel Energy advise its contractor that it was a permit-required confined space.

Stricklin also argued that Xcel Energy Inc., is a holding company that doesn’t employ anybody and therefore cannot be criminally liable.

“What I’m asking you to do is what compassionate people find very hard to do,” Stricklin told the jury. “And that is to set aside your emotions and judge us by the facts.”

RPI and two of its executives are also charged in federal court and are scheduled to go on trial in the future. A civil lawsuit in the deaths was filed in state court in Denver against RPI, two other contractors and the sprayer manufacturer not named in the federal cases, according to Grand Junction attorney Keith Killian.

Specially trained rescue crews did not arrive at the site until about 1 1/2 hours after the fire started. But a rescue would have required firefighters to use ropes or ladders to go down a 20-foot vertical section of tunnel, then along a 1,000-foot section at a 55-degree slope, to reach a horizontal section where the workers were.

Firefighters made a desperate attempt to reach the workers, who were 1,500 feet from the tunnel entrance, using a gas-powered ATV. They were turned back by thick smoke.

Rescuers then tried to lower air tanks, radios and flashlights to the trapped workers. Pena showed jurors a photograph of Foster and Aguirre only feet away from the gear, prompting an audible sob from Foster’s widow, who was sitting in the front row of the gallery.

Pena said the picture was among the saddest things he’d ever seen.

Pena showed other pictures, including the crew the day of the fire; workers with their families; how they were found inside the tunnel — bloodied hands, lying on their backs and sides with white protective suits being taken off; and autopsy photos.

The workers had finished sandblasting the tunnel, which served as a pipe from a mountain reservoir to the hydroelectric plant generator, and began spraying epoxy paint on its insides.

Low temperatures kept the fluid from flowing through hoses, so the workers stopped painting. They were cleaning their equipment with solvent when the fire started. A fire extinguisher at a tunnel entrance didn’t work.

Pena noted that Xcel paid $750,000 to each family and described an extra $300,000 payment to one family as “hush money.” He also said that Xcel hired attorneys to make the matter go away.

After the jury left the courtroom, Stricklin asked the judge to tell the jury the company has a right to counsel — and he said Pena’s comment could be grounds for a mistrial. But Chief U.S. District Judge Wiley Daniel declined the request, saying Stricklin should have objected while the jury was in the room.

“We shouldn’t be here,'” said Elizabeth Foster of Bakersfield, Calif., after jurors began deliberations. “We should be at home, with our husbands, enjoying dinner.”

Xcel Energy trial

June 5, 2011

The case stems from the deaths of five men at the Cabin Creek hydroelectric plant near Georgetown in 2007.

Xcel and Public Service Company of Colorado were each charged with five counts of violating Occupational Safety and Health Administration regulations in connection with the deaths.

The trial could last until the end of June, and more than 60 witnesses are likely to be called to testify.

Jeff Dorschner, a spokesman for the U.S. Attorney’s Office in Denver, said he couldn’t comment on details of the government’s case. Cliff Stricklin, a Denver attorney who is representing Xcel, would say only that he looked forward to presenting Xcel’s case in court after lengthy pretrial maneuvering.

Although no Xcel or Public Service executives are personally on trial in the case, a criminal prosecution brings the possibility of strict post-conviction supervision and bigger penalties than a civil action.

The companies could have to pay fines of up to $500,000 apiece on each count if convicted, according to court records.

The five workers — Gary Foster, 48; Don DeJaynes, 43; Dupree Holt, 37; Anthony Aguirre, 19; and James St. Peters, 52 — were applying sealant inside a large water-drainage pipe called a penstock when a fire broke out.

The pipe was too steep to allow them to climb away from the fire, and the blaze blocked the only escape route. The men died of carbon-monoxide poisoning.

A subsequent report cited several company safety lapses that contributed to the deaths, and OSHA hit Xcel and its contractor for the job — RPI Coating Inc., which employed the men — with $1 million in fines.

A grand jury in 2009 decided criminal charges were warranted as well. Such charges are rare in workplace-safety cases.

A 2003 investigation by The New York Times and PBS’s “Frontline” found that of the more than 200,000 workplace deaths OSHA had investigated in its history, only 151 were referred to federal prosecutors, who chose not to take action in two-thirds of them.

“This is not a typical case for us because, luckily, the conduct here and the unfortunate result is not typical,” then-Colorado U.S. Attorney David Gaouette said at the time of the indictments.

Prosecutors also obtained indictments against RPI Coating and two of its executives — Philippe Goutagny and James Thompson. That portion of the case is expected to go to trial at a later date.