Tuesday, September 21, 2004

Dairy Farmer Acquitted in Confined Space Deaths

A California jury acquitted Pat Faria, a dairy farmer, today in the deaths of two employees in a confined space. I originally wrote about this story here, and then reviewed New York Times' reporter, David Barstow's article about this case here.

To recap, Enrique Araisa, 29, was overcome by gases from the excrement as he tried to fix a pump in a large concrete waste pipe. He fell into a pool of liquid manure and drowned. Jose Alatorre, 22, fainted and fell into the waste while attempting a rescue.

The case is among the first to be prosecuted under a 1999 law signed by California Governor Gray Davis providing that willful violations of safety standards that lead to death or permanent or prolonged impairment may be prosecuted as either a misdemeanor or a felony. The bill also increased civil and criminal penalties for willful, serious and repeat violations of safety and health standards.

The defense argued that the state didn't do enough to warn dairy farmers about the dangers of manure pits. Barstow's article, on the other hand, stated that
Pat Faria knew all about those dangers and safety laws. For one thing, he had been taught them as part of his volunteer-firefighter training. Mr. Hubert (the prosecutor) subpoenaed the man who had trained Mr. Faria in "Confined Space Awareness" in a four-hour class for firefighters in 1999.

The trainer explained how he had taught Mr. Faria the dangers of gases in confined spaces, including how hydrogen sulfide is common in spaces where there is wastewater. The trainer said he also taught Mr. Faria about how no one should enter a confined space without an air test, safety harnesses and respirators.

Mr. Faria had been tested on the class material. In fact, his answer sheet was given to the grand jurors.
The attorney for the foreman, Alcino Sousa Nune, had blamed the workers for their own deaths:
Nunes' attorney, Michael Fagalde of Merced, said the consolidation of charges was significant. "Neither of these guys (Nunes and Faria) did anything. They're charged with not doing something," he said. "The poor, unfortunate victims made choices on their own."

He declined to say what those choices were.
Despite the acquittal, however, Barstow's article describes some of the benefits that came from the trial:
On closer inspection, there are clear indications that something important and rare has occurred here. For all the resentment stirred by the prosecutor with the bow tie, the old moral lines have begun to shift.

On dairy farms across the valley floor, there has been a broad reassessment of safety. Farmers are hiring safety consultants, putting their workers through safety training, installing first aid kits and posting signs.

"It makes you concerned because you think, `Heck, he's a dairyman and I'm a dairyman, too,' " said Mark Ahlem, a young farmer in the valley.

Before the indictment, Mr. Ahlem said, "We were taking some baby steps toward setting up some regular safety meetings."

Since the indictment, though, he has hired a part-time safety director, insisted on frequent safety meetings and established a disciplinary system for safety violations.

Another dairy farmer, Frank Faria — no relation to Pat Faria — said the indictment was an "unfortunate wake-up call." He has since hired a safety consultant for his dairy operation, and feels much better for it.

The changes are not entirely the doing of this one indictment. Cal OSHA levied $166,650 in civil fines against the Faria dairy for the two deaths, a substantial penalty for almost any farmer. The agency also conducted a sweep of the valley's dairy industry, inspecting more than 160 farms, levying nearly $500,000 in fines and offering free consultations. The Western United Dairymen held several crowded training sessions about the dangers of confined space.

But in conversations with farmers here, it is clear that the prosecution made the deepest impression.