Xcel Energy Co. knew of workplace safety violations in the area where five painters later died, yet chose the low-bid proposal by their employer, RPI Coating Inc., over another company with a stronger safety plan, prosecutors charged this week.
Xcel’s attorney said RPI had committed the violations and called the deaths an accident.
Xcel and a subsidiary, Public Service Company of Colorado, are on trial in federal court in Denver in the deaths of the painters, who were trapped by an underground fire in an Xcel penstock in 2007. RPI has also been charged in the case, along with two of its executives.
Xcel and PSC each face up to $2.5 million in fines in the case if convicted of the charges.
The trial began Tuesday.
‘A Dangerous Place’
In opening statements Wednesday, federal prosecutors and Xcel defense lawyers took turns laying blame in the tragedy.
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.
Prosecutor Jaime Peña said Xcel had chosen RPI for the job over another company with a “more robust” safety plan because RPI was the lowest bidder, The Denver Post reported. He also accused the companies of skirting safety rules for permit-required confined spaces.
According to the Associated Press, Peña said that RPI’s standard safety rating fell short of Xcel’s usual expectations but that it won the contract anyway, “with some required addendums, because they came in under budget.”
On the day of the fire, two 15-gallon drums of a flammable solvent had been placed inside the tunnel, Peña told jurors. One drum exploded, causing a flash fire. There were no fire extinguishers in the area, and the one that was eventually found had not been charged.
By the time the flash fire had calmed down, other buckets of solvent and epoxy began burning, ultimately causing the worker's deaths from smoke inhalation, he said.
"Xcel knew that these violations were going on,” Peña told the jury. “They chose to violate [Occupational Safety and Health Administration] standards."
RPI Actions Cites
Xcel defense attorney Clifford Stricklin called the tragedy an unforeseeable accident and said any responsibility rested with RPI.
Stricklin challenged Peña allegations that RPI had been awarded the contract because it had the low bid, saying “the other bidder” had proposed dangerous equipment and had had a recent employee death, according to published reports. Peña had alluded to multiple bidders; it was not immediately clear how many had sought the job.
Stricklin also said that RPI had destroyed cell phones, cameras and daily safety briefing sheets that would have proved Xcel’s innocence. Grand jurors in the case have made the same allegation, and RPI is charged with obstruction.
Two of the victims' widows testified that RPI officials had broken into trailers where the women were staying after the incident to rifle through their husbands' belongings. Log books, journals and cameras that recorded safety information about the job were all later reported missing, the women testified.
‘They Never Came Out’
The fire erupted in October 2007 inside the 4,300-foot tunnel 1,000 feet below Xcel’s Cabin Creek hydroelectric plant near Georgetown, CO, about 40 miles west of Denver. The five men, ages 19 to 52, had stopped painting for the day and were cleaning spray equipment with solvents when the fire erupted, probably from a spark, authorities said.
Firefighters were unable to reach the men, who kept in contact with them for about 45 minutes before succumbing to the smoke.
Pena said the tunnel has no access points and is "literally in a mountain."
Both OSHA and the U.S. Chemical Safety Board have blamed both RPI and Xcel for the deaths. OSHA has proposed $845,100 in penalties against RPI and $189,900 against Xcel, saying the "catastrophe could have been avoided."
Carolyn DeJaynes — the wife of victim Don DeJaynes — testified Wednesday about the agonizing wait for news after the fire broke out, The Denver Post reported.
"We were getting phone calls, and the news said they were coming out," she recalled, breaking into sobs. "They never came out."