DENVER (AP) — Xcel Energy Inc. and its Colorado subsidiary were acquitted of criminal charges Tuesday in the deaths of five workers at a hydroelectric plant tunnel in the mountains west of Denver.
After nearly three days of deliberations, a jury in Denver’s U.S. District Court acquitted the Minneapolis-based utility and Public Service Co. of Colorado of five counts of violating federal safety regulations, including not having a rescue plan.
The workers were trapped in the Cabin Creek plant tunnel near Georgetown, about 40 miles west of Denver, when a flammable solvent they were using to clean an epoxy paint sprayer ignited Oct. 2, 2007.
The workers communicated via radio for 45 minutes with colleagues and rescue crews. Reaching them would have involved using ropes or ladders to go down a 20-foot vertical section of tunnel, then along a 1,000-foot section at a 55-degree slope, to reach a horizontal section where the workers were. Rescuers tried lowering air tanks to the trapped workers, but the workers were overcome by smoke and fumes.
Killed were Donald Dejaynes, 43, Dupree Holt, 37, James St. Peters, 52, Gary Foster, 48, and Anthony Aguirre, 18, all of California.
Federal prosecutors had argued that Xcel knew about dangerous conditions deep inside the power plant tunnel and violated U.S. safety regulations. Xcel attorney Cliff Stricklin insisted the utility followed the law and that California-based contractor RPI Coating Inc., which employed the workers, was responsible for their safety.
Xcel and Public Service Co. each had been charged with five counts of violating Occupational Safety and Health Administration regulations. If convicted, each company could have faced fines of up to $2.5 million.
“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,” U.S. Attorney John Walsh said in a written statement.
“The message we hope is taken from this hearing is that we believe no one should be required to sacrifice their life for a day’s pay,” Greg Baxter, OSHA regional administrator in Denver, said in a written statement. “Despite today’s verdict, we do intend to take appropriate action against any employer willing to compromise workers’ safety and health just to get the job done.”
Some of the victims’ relatives wept after the verdicts were read.
“It feels like the same day when I was there waiting for him to come out of that tunnel, and he never came out,” said Foster’s widow, Elizabeth.
Stricklin said he was pleased with the jury’s decision but it was a day of reflection, not one of joy or elation. “We realize there are some people who are still grieving and dealing with this tragedy,” he said.
He also said OSHA should clarify its rules, which Xcel followed but which still allowed a fatal accident to occur.
“This case really is about five men who lost their lives,” Stricklin said. “Xcel sends it deepest, heartfelt sympathies to the families.”
Holt’s widow, Gladys, said “sorry” wouldn’t bring back the father of her 7-year-old son.
“It doesn’t help us move on in our lives. It doesn’t teach my child what a man teaches them. I have to do that. It’s my job to be a mom and dad,” she said.
She said she was shocked and disappointed with the verdict.
“They are guilty,” she said, 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.”
Holt and Foster said they would be back for the trial of RPI Coating, which also faces federal charges, along with two of its executives. A trial date hasn’t been set.
RPI’s attorney, Larry Pozner, said before the jury reached its verdict that he felt Xcel showed that a tiny misstep with a chemical led to a horrible consequence.
“We agree with Xcel’s thought that this is not a criminal case and that no one willfully engaged in criminal conduct,” Pozner said.
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