Federal criminal proceedings have begun in Denver against Xcel Energy Co. in the deaths of five men killed in a fire at the Cabin Creek hydroelectric plant in 2007.
Jury selection began Tuesday (May 31) in the rare trial, in which Xcel and subsidiary Public Service Company of Colorado are each charged with five counts of violating Occupational Safety and Health Administration regulations in the men’s deaths at the complex in Georgetown, CO, about 40 miles west of Denver.
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, trapping them 1,000 feet underground.
The pipe was too steep for the men to climb out, and the blaze blocked the only escape route. The five men died of smoke inhalation, and three other workers were injured.
Painting Contractor Charged
The victims worked for RPI Coating Inc., of Santa Fe Springs, CA.
In August 2009, a grand jury took the rare step of indicting Xcel, RPI, RPI owner and president Philippe Goutagny, and RPI vice president and project supervisor James Thompson in the accident. RPI’s trial will be held at a later date.
Criminal charges are unusual in workplace deaths, but the indictment said that the defendants were aware that the relining project posed serious health and safety hazards to their employees working inside the penstock.
RPI lead attorney Michael Connelly has called the disaster “a tragic accident. We reject any attempt to characterize the Cabin Creek accident in any other way."
Authorities said the workers had just finished abrasive blasting the inside of the tunnel, which serves as a pipe from a mountain reservoir to a hydroelectric generator. They then began spraying epoxy paint inside the tunnel but were having problems keeping the mixture flowing through the hoses, authorities said. They painted about 10 feet of the tunnel and stopped for the day.
U.S. Chemical Safety Board
|The fire erupted 1,000 feet underground in a tunnel at Xcel Energy Company's hydroelectric power plant in Georgetown, CO. The painters had been cleaning spray equipment with solvents.|
While cleaning their spray equipment with a flammable solvent, however, a fire broke out, probably ignited by a static spark from machinery inside the tunnel, according to the U.S. Chemical Safety Board (CSB), which investigated the accident. RPI had 15 gallons of solvent in the penstock and no fire extinguisher near the work area, authorities said.
Firefighters tried to reach the workers by taking a small gas-powered all-terrain vehicle through the entrance and up the tunnel, but they were turned back by thick smoke. A rescue would have required firefighters using ropes or ladders to go down a 20-foot vertical section of tunnel, then down a 1,000-foot section of the steeply sloped pipe to reach the workers.
The five trapped workers communicated via radio for 45 minutes with colleagues and rescue crews before succumbing to the fumes.
No rescue plan was in place despite concerns by both Xcel and RPI about the work site having only one exit.
The indictment also alleges that the project lacked the necessary permits for confined space regulations and that the defendants had failed to conduct life safety rescue drills.
RPI is also facing a count of obstruction. The grand jury found that the company knowingly altered, destroyed or concealed the victims' cameras, journals and cell phones with the intent to impede or influence government investigators.
No Xcel or Public Service executives are personally on trial in the case, but a criminal conviction could bring strict supervision and other measures, as well as higher penalties than a civil action. The companies each face fines of up to $500,000 on each count if convicted.
In March 2008, OSHA proposed $845,100 in penalties against RPI and $189,900 against Xcel, saying the "catastrophe could have been avoided."
The CSB also faulted Minneapolis-based Xcel and RPI, concluding that they had failed to plan adequately for hazardous work that included taking flammable solvents inside a 4,300-foot tunnel. CSB details the disaster in a devastating investigation video, No Escape: Dangers of Confined Spaces.
Civil lawsuits in the deaths have also been filed against RPI and two other contractors not named in the federal cases.
The trial is expected to last several weeks and include testimony from more than 60 witnesses.
Criminal prosecutions of companies are extremely rare, University of Denver business law professor Kevin O'Brien told the Associated Press. “The problem and why a grand jury decided that criminal charges were warranted is that the money [OSHA fines] is so low," he said.
Then-Colorado U.S. Attorney David Gaouette said at the time of the indictments: "This is not a typical case for us because, luckily, the conduct here and the unfortunate result is not typical.”
A 2003 investigation by The New York Times and PBS's Frontline found that only 151 of the more than 200,000 workplace deaths OSHA had investigated were referred to federal prosecutors, who chose not to take action in two-thirds of them.
Said O’Brien: "There's no way that Xcel intended for these people to die, but we do make provisions for violating standards normally expected of a usually prudent company to protect their workers."