In Arizona, "A person commits negligent homicide if with criminal negligence such person causes the death of another person." "Criminal negligence" is defined as “gross negligence so extreme that it is punishable as a crime,” "aggravated assault" is committed if a person causes serious physical injury to another and “endangerment” is defined as “recklessly endangering another person with a substantial risk of imminent death or physical
injury."

Knowing these definitions, can anyone tell me why an employer who sends a worker to his death in an unmonitored confined space or an unprotected 12 foot deep trench shouldn't be prosecuted under any of the above felonies -- as opposed to the Occupational Safety and Health Act, where the maximum penalty for willfully killing a worker is a misdemeanor with a maximum of six months in jail?

Well, just prosecuting under the OSHAct certainly didn't make sense to the Arizona Attorney General's office. Prosecutors Christina Fitzpatrick and Mark Horlings last month convinced a jury to find the Far West Water and Sewer Company guilty on five of the six felony charges filed against it.

The jury....convicted the water and sewer company of negligent homicide, aggravated assault, violating a safety standard causing the death of an employee and two counts of endangerment in the deaths of James Gamble, 26, and Gary Lanser, 62, who were overcome by toxic sewage gases while working on an underground sewer tank on Oct. 24, 2001, in Mesa Del Sol.

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Far West had been charged with two counts of manslaughter, one for each of the deaths, but the jury, composed of nine women and three men, found the company not guilty on both counts.

Each count of manslaughter the water and sewer company was facing carried with it a lesser included charge of negligent homicide. While jurors found Far West guilty of negligent homicide in Gamble’s death, the jury was unable to come back with a verdict for the negligent homicide charge in Lanser’s death.

Santec Corp. a subcontractor that employed Lanser, pleaded guilty last year to a felony charge of violating a safety standard causing the death of an employee. Under the plea agreement Santec was required to implement a safety program that complies OSHA confined space standards, pay $30,000 in restitution and will be inspected annually by Arizona OSHA.

This tragedy was unfortunately typical of confined space incidents, where one of the workers killed was the attempted rescuer and two other rescuers narrowly escaped death:

Gamble entered the tank to remove a plug that was blocking a line into the tank and died after being overwhelmed by hydrogen sulfide fumes when a pump that ran raw sewage into the tank from a different line was turned on.

Lanser went into the tank to try and save Gamble, he, too, was overcome. A third worker, [Nathan] Garrett, went down a ladder in the tank but didn’t make it all the way down. Forewoman Connie Charles went down the ladder after Garret and she, too, breathed the toxic gas and had to be rescued.

Garret has suffered permanent lung damage.

Enclosed areas or “confined spaces” in sewers and wastewater treatment plants (or anywhere where there is rotting organic material) are notorious for accumulations of hydrogen sulfide which can kill workers and their rescuers. Confined spaces can also develop life-threatening oxygen deficiencies and generate explosive methane gas. For this reason, OSHA has a detailed Confined Space standard which requires the air to be monitored, a means to safely rescue workers if they are overcome by fumes, and extensive training.

According to the prosecutors on the case, the violations were so blatant, and it was so obvious that the workers had no idea of the danger inherent in confined spaces, that a criminal prosecution was completely appropriate. The air in the tank had not been tested during the day of the incident, the workers weren’t properly trained and the required safety and rescue procedures weren’t followed. Unlike Santec, which admitted guilt prior to the trial, Far Western decided to fight the case, at one point arguing that the workers had mysteriously suffered simultaneous heart attacks. But the prosecution was strongly supported by Dr. Daniel Teitelbaum, a Denver toxicologist who has been a long-time fighter for workers' rights.

The AG’s office originally filed against both the company and its executives, although the judge separated the case into two trials. Far West president Brent Weidman will be tried for manslaughter, aggravated assault and endangerment in February.

Look back at the definitions at the beginning of this article, then consider that under the OSHAct, the penalty for causing the death of a worker by willfully violating safety laws is half the maximum for harassing a wild burro on federal lands. I'm very happy about the results of this case, and about the recent decision to charge Ken Formica, owner of Staten Island, New York-based Formica Construction, with manslaughter in the 2003 trenching death of a Mexican laborer. But these are only two cases.

As far as I'm concerned, every single trenching and confined space death should automatically be referred to state or local prosecutors for felony manslaughter and negligent homicide charges. I'm sick of waiting for Congress to increase OSHA penalties when all they seem interested in is weakening enforcement and making sure that the good companies don't have their feelings hurt by mean OSHA inspectors.

Carol Borieo, the mother of James Gamble, said she would like to see an example made of Far West because she is worried what happened to her son could happen again if the company isn't punished.

And in that spirit, here's our New Year's resolution: Familiarize yourselves with these cases. Download and print out the articles. And every time you see a trenching, confined space or other workplace fatality that any jury could see was preventable, contact the local media and the local prosecutor or state Attorney General and demand that felony charges be brought.

Labels: confined space hazards, Criminal Prosecution