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Trial Begins in Deaths of 5 Painters

Wednesday, June 1, 2011

More items for Health & Safety

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."

Workers Trapped

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.

Obstruction Alleged

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.

On Trial

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.

Rare Prosecution

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."

Comment from Billy Russell, (6/2/2011, 6:20 AM)

All of the things that are wrong with this should have been covered in the submits,prior to them ever entering that closed confinement without an escape plan at the least it is VERY SAD those 5 men had to die............I pray for their families and hope that they continue the work they loved in a better place,Rest in peace ......

Comment from Tom Schwerdt, (6/2/2011, 8:37 AM)

What a terrible, avoidable tragedy. Even something as simple as a rope tied off at the other end of the steep pipe would have likely saved them.

Comment from Richard McLaughlin, (6/2/2011, 9:45 AM)

I sort of have to agree with Tom, although I think it would have taken more than just a rope to have saved these guys. Some simple pre-planning easily could have. Hydroelectric supply penstocks present a unique set of conditions, but ones that are not impossible to overcome. The access is usually limited, so access and egress as well as ventilation opportunities are a challenging. The normally steep slope, along with a floor made slippery by with organic matter, spent abrasive, or just about any other residue makes moving around difficult. Lighting, scaffolding, supplying materials to and removing waste from the work area; the list goes on when it comes to the difficulties in doing a project like this. But, as anyone who has done similar work can tell you, it is NOT impossible to take all the likely possibilities in to account and lay out a successful safety plan. I’m a bit surprised the facility owner didn’t require one be presented before work was allowed to commence. I know I had to have one for the few penstocks I’ve done in the past.

Comment from dennis berry, (6/3/2011, 3:58 AM)

Agree totally Richard, always a challenge but not impossible and at the end of the day no matter at what end of the chain you are with something like this, you would want to know that every possible effort has gone into the planning to ensure everyone saftey.

Comment from Greg Howe, (6/3/2011, 11:21 AM)

Planning is a great tool, but where the rubber meets the road is the when the people doing the job are not afraid to say this is an unsafe situation we're in. When you've got five painters in their 30's to 50's you've got about a hundred years experience. A least one of them knew that the airless could create a static spark and should have stopped the job. I hope they weren't afraid to speak up.

Comment from Erica McGrath, (6/4/2011, 7:21 PM)

I learn as much --actually more-- from reading the comments of "Experience" in PaintSquare as I do from alot of the articles. Very sad Cautionary Tale I will never forget!

Comment from Chuck Pease, (6/5/2011, 1:51 PM)

I attribute this as one more terrible example of what low bidder takes all can lead to. In an economic climate where subcontractors literally have to cut their own throats to secure work I fear that we will see a continuation of these types of events. Like a wise man told me once you can have a safety manual 4 inches thick but if you dont adopt an IRONCLAD enforcement and the training associated with your safety programs then the manual is only good for toilet paper. Shame on the owner for seeing only the bottom line in this tragic case.

Comment from Richard McLaughlin, (6/6/2011, 9:54 AM)

All you guys have good, valid points. Maybe my view “if it’s worth taking the time to write it’s worth doing” is a bit unusual. It also could come from the fact that I was the “and Son” painted on the side of the truck, meaning more than often I was doing the work alongside my crew. Do you think more owners might think a bit deeper if they were, or a family member was, down in the tunnel instead back in the office? The guys who remember doing the work tend to take better care when it comes to Safety issues.

Comment from Car F., (6/6/2011, 10:51 AM)

"Criminal prosecutions of companies are extremely rare" this is precisely why he carnage doesn't stop: it is cheaper to injury than to implement safety measures. Low OSHA fines and bureaucratic citations makes the enforcement a purely fictional exercise whereby a small fine is paid and then is business as usual. Knowingly injuring people is an indictable offense that often carries jail sentences. On the other hand, knowingly injuring workers carries small fines and safety citations....

Comment from Emmanuel Bortolis, (6/6/2011, 12:29 PM)

AS Greg Howe has mentioned, Gary and his crew had over 100 years combined experiance in this type of jobs. I am sure that they choose and picked-up all equipment needed to do the job safe and I am sure that RPI Coatings never denied to Gary or his crew any additional safety equipment needed. And I do not think that anyone wishes for his crews to have accidents. I met Gary many years ago and he was a professinal painter. RPI Coatings asked his opinion many times.

Comment from Vic Feuerstein, (6/28/2011, 4:40 PM)

As an Industrial Hygienist in the hydropower business, we do this kind of work every day. We have contractors doing this kind of work every day. Coatings work inside penstocks is not new and the hazards are very well known. It is conducted in a safe manner all the time. Both Excel and RPI knew the hazards, neither are new to this type of work. Excel did not put the safety and health requirements in the specification to meet their obligation to insure that confined space monitoring identified a flammable condition, that ventilation was adequate to prevent the build up of flammable vapors and that the emergency plan and equipment were in place to get the personnel out. RPI did not implement the necessary confined space entry proceedures, air monitoring and did not have the emergency plan and equipment in place to protect their personnel. Sadly, there are five empty chairs at the Christmas table and families shattered. This trajedy is prevented everyday, when this work is done safety every day of the year.