by Karen Kapsanis
Defendants facing criminal charges in the deaths of five painters at a hydroelectric plant were granted a motion on October 23, 2009, for more time to prepare for trial, according to Jeffrey Dorschner, press officer for the U.S. Attorney’s Office in the District of Colorado. All charges except one were misdemeanors. A trial date has not been set.
The painters died October 2, 2007, while trying to escape a fire that started in a penstock they were relining for the Cabin Creek Hydro Plant near Georgetown, CO. The painters were employees of RPI Coating Inc. (Santa Fe, CA). Minnesota-based Xcel Energy and Public Service Company of Colorado, which is part of Xcel, operate the hydroelectric plant.
Indictment in August 2009; All Plead Not Guilty
RPI Coating Inc., its president Philippe Goutagny, its former vice president James Thompson, Xcel Energy, and Public Service Company of Colorado were indicted August 27, 2009, in the deaths of painters Gary Foster, Don DeJaynes, Dupree Holt, Anthony Aguirre, and James St. Peters. The indictment was filed in the United States District Court for the District of Colorado.
According to the indictment, the penstock fire began when vapors ignited from the solvent, methyl ethyl ketone, which the painters had on site to clean their spray equipment. Their escape route was blocked, and they died of asphyxiation, caused by inhalation of carbon dioxide from the fire, the indictment says.
The indictment alleges that the defendants willfully violated Occupational Safety & Health Administration (OSHA) regulations on permit-required confined spaces and other hazards, which resulted in the deaths of the painters. Each defendant faces five misdemeanor counts, one for each painter who died. If convicted, each company could face a maximum penalty of $500,000 per count. If convicted, Mr. Goutagny and Mr. Thompson could each face a penalty of up to $250,000 per count or a prison sentence of up to six months per count, or fines and imprisonment, according to the indictment.
RPI Coating Inc. (but not Mssrs. Goutagny and Thompson) was also indicted on a sixth count, obstruction, which is a felony. The indictment alleges that “[o]n or about October 3, 2007, and continuing thereafter to August, 2009, in the State and District of Colorado, RPI Coating Inc. knowingly altered, destroyed, concealed, and covered up records, documents, and tangible objects…cameras and journals and …[a] cell phone, with the intent to impede, obstruct, and influence the investigation and proper administration of a matter within the jurisdiction and agency of the United States….”
If convicted on the obstruction count, RPI faces an additional penalty of up to $500,000, according to the indictment.
In an August 28 announcement of the indictments, the U.S. Attorney’s Office of the District of Colorado pointed out that “the charges are only allegations, and the defendants are presumed innocent unless and until proven guilty.”
All defendants pleaded not guilty at their arraignments on September 22, 2009.
In a statement issued the day after the indictment, Xcel’s general counsel, Michael Connelly, said “The general public is familiar with the legal system, and people understand that accidents are treated differently from criminal acts. This was an accident—a tragic accident. We reject any attempt to characterize the Cabin Creek events in any other way, and we look forward to the opportunity to present our case.”
Recent Motion Extends Trial Prep Time
Attorneys for RPI Coating, Mr. Goutagny, and Mr. Thompson filed a motion, unopposed, on October 12, 2009, to have the case declared complex under the Speedy Trial Act (18 USC §316(h)(8), according to the court docket for the case. The October 23 court action granting the motion will allow all of the defendants more time to prepare for trial than typically allotted, said Mr. Dorschner of the U.S. Attorney’s Office in the District of Colorado.
Commenting on the motion granted, defense attorney Dru Nielsen of the Denver law firm Reilly Pozner LLP, said “It is a complex case with unique and novel issues in a criminal setting.” Reilly Pozner represents RPI Coating and Mr. Goutagny.
Mr. Thompson’s attorney, David Kaplan, of the Denver firm Haddon, Morgan, Mueller, Jordan, Mackey & Foreman, P.C., said of the declaration of complexity, “I think it was a designation that we felt applied, as did the government, given both the complexity of the regulatory scheme, the factual circumstances, and the number of documents created in the government’s investigation. To adequately prepare to answer the allegations, we wanted to make sure we had sufficient time, which is what the complex designation provides.”
Separate OSHA Penalties Are in Litigation
Independent of the federal indictment, OSHA, in March 2008, proposed its own penalties of $845,100 against RPI Coating and $189,900 against Public Service Co. of Colorado, dba Xcel Energy, for alleged serious and willful violations of OSHA standards after the penstock fire that resulted in the painters’ deaths.
OSHA defines a “willful violation” as one “in which the employer knew that a hazardous condition existed but made no reasonable effort to eliminate it and in which the hazardous condition violated a standard, regulation, or the OSH Act.” OSHA defines a serious violation “as one in which the workplace hazard could cause injury or illness that would most likely result in death or serious physical harm, unless the employer did not know or could not have known of the violation.” (See the OSHA booklet, Employer Rights and Responsibilities Following an OSHA Inspection, http://www.osha.gov/Publications/osha3000.html.)
The companies exercised their right to appeal the OSHA citations to the Occupational Safety and Health Review Commission (OSHRC), an office independent of OSHA. As of October 26, 2009, the OSHA penalties were still in litigation, according to Jeremy Eggers of the Denver OSHA area office, which handled the OSHA investigation.
Settlements of appeals through OSHRC can take years. For instance, in 1993, OSHA cited Pennsylvania painting contractor E. Smalis for violations of OSHA’s Interim Final Rule on Lead Exposure in the Construction Industry, including more than 50 willful violations. The agency initially proposed fines in excess of $5 million. After the contractor appealed the penalties twice, the case was settled in April of 2009, with fines totaling approximately $1 million, according to OSHRC.