The Associated Press June 1, 2011, 4:23PM ET

Prosecutor: Xcel knew of OSHA violations in Colo.

Federal prosecutors say Xcel Energy Inc. knew of workplace safety violations that led to the death of five workers in Colorado.

A defense attorney Wednesday shot back that it was an Xcel contractor that violated regulations and called the deaths an accident.

Xcel Energy and a subsidiary, Public Service Company of Colorado, are each charged in federal court with five counts of violating Occupational Safety and Health Administration regulations for the October 2007 fire inside a water tunnel at the Cabin Creek hydroelectric plant near Georgetown, Colo., about 40 miles west of Denver.

"This case is the United States versus Excel and the Public Service Company of Colorado. They're the same people," federal prosecutor Jaime Pena said in his opening statement.

Donald Dejaynes, 43, Dupree Holt, 37, James St. Peters, 52, Gary Foster, 48, and Anthony Aguirre, 18 died as a result of smoke inhalation when a flammable solvent they were using caught fire, trapping them inside the tunnel.

Firefighters who arrived at the scene would have had to rescue the workers by using ropes or ladders to go down a 20-foot vertical section of the tunnel, then down another section of the tunnel sloping at a steep 55 degree angle.

In August, a federal investigation found the Minneapolis-based companies and the contractor at fault for failing to adequately plan for a hazardous work that included taking flammable solvents inside a 4,300-foot tunnel.

Pena said the tunnel has no access points and is "literally in a mountain."

Workers had finished sandblasting the inside of a tunnel that served as a pipe from a mountain reservoir to the hydroelectric generator, and they began spraying epoxy paint inside. Low temperatures kept the fluid from flowing through the hoses so they decided to stop for the day after painting about 10 feet.

Pena said several bids had been made for a job to reline the inside of the tunnel -- but the company that eventually received the contract, RPI Coatings Inc., came in as the lowest bidder.

Pena illustrated the alleged safety deficiencies of RPI, saying their standard safety rating wasn't up to par with the usual expectations of Excel, but the company gave them the job, with some required addendums, because they came in under budget.

"It's a dangerous place, no doubt about it," Pena said of the tunnel.

The day of the fire, two 15-gallon drums of an inflammable solvent had been placed inside the tunnel, Pena said. One 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.

"Excel knew that these violations were going on. They chose to violate (Occupational Safety and Health Administration) standards," Pena said.

Defense attorney Clifford Stricklin said the worker's deaths were the result of the fire, not safety violations, and no one could have foreseen the disaster.

"If we could turn back the hands of time, everybody would make different choices," Stricklin said.

Stricklin said the five workers who died had all been RPI employees -- no employees from Excel or the Public Service Company of Colorado were present at the site at the time of the fire, and he urged the jurors to try to see the fire from the perspective of the workers at Cabin Creek, who didn't have the hindsight that has come from after three years of investigations.

"This was simply an accident," Stricklin said.

Stricklin challenged Pena's allegations that RPI got the contract because they had the lowest budget, saying the other bidder considered for the job had proposed dangerous equipment and had had a recent employee death.

Stricklin went on to assert that RPI has destroyed evidence, such as cell phones, cameras, and daily safety briefing sheets that would prove the innocence of the defendants.

"RPI has deprived the (Public Service Company of Colorado) of the ability to prove ... their innocence," Stricklin said.

The rare trial of a company charged with a crime is expected to last through the end of June.

If convicted, each company could have to pay fines of up to $2.5 million and be subject to strict post-conviction supervision.


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