A recent verdict in Denver exonerating Xcel Energy Inc. of criminal charges involving five painter deaths in 2007 sets the stage for the forthcoming trial against Santa Fe Springs, Calif.-based contractor RPI Coating Inc. and RPI executives, Philippe Goutagny and James Thompson.
A federal jury on June 28 found Minneapolis-based Xcel not guilty of 10 workplace safety charges related to a deadly powerplant fire. In a rare occurrence for Occupational and Safety Health Administration violations, Xcel and local subsidiary, Public Service Co. of Colorado, had faced criminal charges carrying up to $5 million in combined fines, plus the threat of safety monitoring.
Results from the emotionally charged 24-day trial proved unsatisfactory for worker widows and OSHA regional administrator Greg Baxter who said in a statement, “…despite [the] verdict, [OSHA intends] to take appropriate action against any employer willing to compromise workers' safety and health just to get the job done.” Xcel’s successful defense could consequently place RPI in the prosecution’s crosshairs. A court date has yet to be set but the trial will likely begin early this fall. Unlike Xcel, contractor executives are being personally indicted.
Criminal charges stem from a deadly fire at Xcel’s 44-year-old, 1.2-MW Cabin Creek hydroelectric plant, 35 miles west of Denver. Five male painters, ages 19 to 52, were spraying an epoxy sealant inside a 12-ft-dia., 4,000-ft-long water drainage pipe, or penstock, when a malfunctioning sprayer system prompted crew members to clean hoses using methyl ethyl ketone. Vapors from the flammable solvent, housed inside the sprayer base, ignited a chemical fire and blocked the exit. Trapped 1,500-ft underground, Gary Foster, Don DeJaynes, Dupree Holt, Anthony Aguirre and James St. Peters survived for about one hour before dying from asphyxiation on October 2, 2007. Four additional workers on the opposite side of the fire escaped.
OSHA leveled most of blame at RPI. Although both owner and contractor were fined a combined $1,035,100 in 2008 for safety violations, RPI shouldered 82% of those penalties. RPI was cited for using unsafe electrical equipment and improperly handling flammable liquids, plus providing inadequate ventilation and not having an emergency response system in place, among other things.
A 2009 grand jury decided that criminal charges were warranted. Attaining a criminal conviction could prove an uphill battle, however. Three construction workers were recently acquitted of manslaughter and criminally negligent homicide charges in the 2007 Deutsche bank fire that killed two New York City firefighters.
“Overall, the standard to prove criminal violations is quite high. There has to be an intentionality or really egregious conduct,” said American College of Construction Lawyers President Deborah S. Ballati. “The hardest thing about trying a construction case is translating it so that a judge and jury can understand it.”