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Jury Clears Xcel in 5 Painters’ Deaths

Wednesday, June 29, 2011

More items for Health & Safety

A federal jury has found Xcel Energy and its Colorado subsidiary not guilty in the 2007 deaths of five painters who were trapped by fire in a utility penstock.

The decision, returned late Tuesday after three days of deliberations, ended a rare trial over criminal workplace safety violations. Xcel and subsidiary Public Service Co. had each faced up to $2.5 million in fines if convicted on all charges.

Xcel had denied responsibility for what it called “a tragic accident” and pointed the finger at the men’s employer, RPI Coating Inc., of Santa Fe Springs, CA. RPI and two of its executives are due to stand trial in the case at a later date.

“Today the jury has spoken,” U.S. Attorney John Walsh said after the trial that began May 31. “We believe that this was an important case to prosecute, as it involved the loss of five lives. That said, we respect the jury’s verdict.”

Rescue Plan Lacking

Prosecutors had argued that Xcel knew about, and ignored, the tunnel’s dangers in several ways, including not developing a rescue plan for emergencies and not having a working fire extinguisher on the site.

"That's why those guys died," Assistant U.S. Attorney Jaime Peña told jurors in closing arguments Friday. "They had to know it was a dangerous place."

Peña accused Xcel of hiring RPI over another company with a stronger safety plan, because RPI was the low bidder. 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.”

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.

Pena noted that Xcel had paid $750,000 to each family and described an extra $300,000 payment to one family as "hush money."

Trapped Underground

The fire broke out 40 feet underground at the Cabin Creek hydroelectric plant near Georgetown, CO, after workers had finished painting for the day and were cleaning a sprayer with some of the 15 gallons of flammable solvent on the site. Vapor from the solvent ignited.

Prosecutors said that Xcel knew the solvent would be used on the project because it was listed on the utility’s own project specifications.

Emergency response teams worked for nearly two hours to reach the five painters, ages 19 to 52, but the painters were unable to escape the steep tunnel—which ran vertically for 20 feet and at a 55-degree angle for 1,000 feet—and eventually succumbed to smoke inhalation.

OSHA, CSB Assign Blame

Both the federal Occupational Safety and Health Administration and the U.S. Chemical Safety Board found that Xcel and RPI shared responsibility for the disaster.

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 said Xcel had failed to plan adequately for hazardous work that included taking flammable solvents inside a 4,300-foot tunnel. CSB detailed the disaster in an investigation video, No Escape: Dangers of Confined Spaces.

‘Ignorance, Mistakes, Accidents’

From the start, Xcel denied all of the accusations of wrongdoing. The company’s attorney, Cliff Stricklin, insisted that RPI was responsible for its workers’ safety.  He said prosecutors were using hindsight to try to hold the defendants to a standard of perfection.

Stricklin also argued that Xcel Energy Inc. was a holding company that does not employ anybody and therefore cannot be criminally liable.

And, indeed, the trial was a rarity. In a 2003 study, the New York Times and PBS’s Frontline reported that only 151 of the more than 200,000 workplace deaths OSHA had investigated until that time had been referred to federal prosecutors, and only about 50 were prosecuted.

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

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

Families: ‘They Are Guilty’

Stricklin said he was pleased with the jury's decision, but he added: "We realize there are some people who are still grieving and dealing with this tragedy.”

Two of the painters’ widows left the courthouse in tears after the verdict was read, The Denver Post reported.

"They are guilty," she one, wearing a T-shirt with her husband's photo. "If they weren't, our husbands would be here right now. In my heart, they are guilty."

Comment from Paul Archambo, (6/30/2011, 9:57 AM)

I wonder how much Xcel paid the jury? If Xcel is not guilty of negligence then they are surely guilty of stupidity. The hazards of confined spaces are well know, especially confined spaces that are a mile long. Xcel made the decision to go with the low bid even tho their safety record was below the standard in their own specs. This is corporate greed at its finest,profit over safety even if its cost is a human life or 2 or 5.

Comment from Felix Saldivar, (9/15/2011, 8:23 PM)

Quote: "...hiring RPI over another company with a stronger safety plan, because RPI was the low bidder. 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..." "...Xcel had paid $750,000 to each family and described an extra $300,000 payment..."