Considering company safety records in the public bid process could be an effective way to ensure worker safety.
Tuesday, NBC1-17's investigation revealed a loophole in the state system that may be to blame for the deaths of two construction workers in Durham.
On June 7, Luis Castaneda Gomez, 34, of Durham and Jesus Martinez Benitez, 32, of Clayton died while doing construction work in a manhole along Highway 70 in Durham. The two men worked for Burlington-based Triangle Grading and Paving Inc. and were assigned to work on a water line project for the City of Durham.
On the day of the incident, a construction worker flagged down a passing motorist who then called 911. The driver told the 911 operator that two men, Gomez and Benitez, were “out.” The driver shouted into the manhole but Gomez and Benitez never responded.
Emergency responders found there was not enough oxygen inside the more than 12-foot deep manhole, and believe that Gomez and Benitez suffocated.
Following the fatal incident, NBC-17 uncovered the Occupational Health and Safety Administration, Department of Labor, has cited Triangle Grading and Paving more than 60 times for construction-related safety violations. Out of those, 40 of the violations were considered serious, including one fatality.
Since 1997, the Department of Labor has fined Triangle Grading and Paving $217,000.
Gomez’s wife, Miriam, said her husband mentioned concerns about the company.
“He would say that they would not bring the necessary equipment to detect when someone entered the manhole,” Miriam said.
According to a video produced by Coastal Training Technologies and used by the Department of Labor for training purposes, safety precautions -- like using an oxygen detector -- should always be used before a worker enters a manhole. Workers must also have a harness to help pull the worker out if he encounters trouble.
Durham city officials have declined NBC-17 requests for an on-camera interview about the city’s process for granting public utilities contracts. Through an open records request, NBC-17 obtained e-mails between city employees.
In an e-mail after the accident, Durham’s Water Management Director Don Greeley wrote, “At this point it appears they did not use a gas detector before the first worker entered the manhole. Nor was the appropriate harness and tripod used.”
Triangle Grading and Paving said the workers were well-trained and blames a “mistake in judgment.”
“I feel very lonely and it will never be the same without him,” Miriam said. “Luis didn't want to work for the company… He would say they would force him to do stuff that was dangerous.”
She continued, “He talked about wanting to go to Mexico to see his parents soon in case something bad ever happened ... He tried looking for another job, but he just never could find one.”
In a press release issued in Jan. 2010 following a 2009 incident at Fort Bragg, the U.S. Department of Labor said, “This employer continues to put workers at risk by ignoring these safety standards,” indicating the U.S. Department of Labor knew about Triangle Grading and Paving’s troubled past.
However, when asked why a company with so many violations is allowed to continue operating, Phil Hooper with the Department of Labor said, “Our main goal is to prevent injuries and illnesses from taking place, not to worry about putting companies out of business. That is for someone else to do.”
As it turns out, no state government agency has the authority to put a company out of business because of the company’s safety violations.
The Department of Labor continually inspects companies, sometimes issuing fines and makes safety records public online. However, Hooper says it is up to the individual city to check the records before granting a company a work contract.
“It’s just like if you’re having work done in your house, it is up to you to do due diligence to make sure you are going to have quality work,” Hooper explained.
Durham officials admitted the city does not check Department of Labor safety records during the contract bidding process because it is not required by the formal bidding laws that are outlined by the state.
Durham's Deputy City Manager Theodore Voorhees wrote in a statement that the City does not "specifically consider safety in awarding construction."
Following the accident, City spokeswoman Beverly Thompson wrote in an e-mail, "We may be questioned about our process to hire contractors, and if violations are taken into account.”
City Attorney Fred Lamar wrote, “I see no legal reason why the City could not evaluate a contractor’s past safety record as a criteria for determining whether the contractor is a ‘responsible’ contractor.”
State law allows cities to consider safety when hiring companies; however the only requirement is that the contract be awarded to “the lowest responsible bidder.”
Durham is not the only city that does not look at state safety records; Raleigh does not look either.
“If they meet those requirements by the bid process, we would not typically do it. Unless we were notified that there might be some problem with the safety record,” Raleigh City Manager Russell Allen said.
Rep. Paul Luebke of Durham says the weakness in the NC General Statute came as a surprise.
“Your report indicates that the City did not even consider the safety record. That is really unacceptable and I don’t think the people of North Carolina want that,” Luebke said. “I mean the consequence of this has been that two men died.”
Despite its history of safety violations, Triangle Grading and Paving executives stood by the company’s record.
“For the type of business we are in I think our record stacks up very well and we are safety conscious like our competitors,” said Jack Bailey, Executive Vice President with Triangle Grading and Paving.
But in recent Durham construction projects where Triangle Grading and Paving entered a bid, the company had the most safety violations out of the three lowest bidders.
Rep. Luebke says he will do his part to change the general statute to explicitly include safety, but a new bill cannot be introduced until 2013.
“When the organizations that are hiring you are taking into consideration how well you manage safety then it becomes incumbent on you as an employer, to give safety a high priority,” said Tom Cecich following last month's deaths.
Cecich, who has 40 years of experience in occupational safety and health says checking a company’s safety records before granting a contract is good business for both the contractor and the organization doing the contracting, despite whether or not it is required by law.
Occupational Safety and Health Administration is currently investigating Triangle Grading and Paving and the City of Durham in relation to the incident that resulted in the deaths of Gomez and Benitez.
In early June, the Mayor of Durham told NBC-17 "I think we need to find a way to get the problem fixed." One day later, Mayor Bill Bell said that he was "mistaken" and is not discussing the city's procedures relating to the manhole with NBC-17 nor the city manager.
The City of Durham, however, stands by the following statement released after the incident, “The City of Durham is continuing to evaluate this matter and have not yet reached any decision about whether our process will change. We will be guided by the outcome of the reviews that are being conducted following this unfortunate tragedy.”
June 9 Statement from the City of Durham:
Our thoughts and prayers are with the families of the two men who died in Tuesday’s incident. Safety is always an important factor on projects, which is why the City requires that our independent contractors follow all applicable laws and regulations to ensure the safety of their workers. This requirement in their contracts, even though the City is not the authority responsible for enforcement of these laws and regulations. The Department of Labor, appropriately, is now investigating this incident.
In issuing construction contracts, the City follows the bidding procedures as required by State statute. We also check references to determine the contractor’s ability to perform the work and assess if there are any issues that would impede that ability. If safety concerns are brought to our attention during the bidding process, they would be taken into account.
The City is always evaluating our processes, and will make changes as needed. We believe our practices to be consistent with other cities. The Department of Labor’s Occupational and Safety and Health Division, along with Triangle Grading are still investigating, so it is premature to make any determinations based on this incident at this time.
Beverly B. Thompson
Public Affairs Director, City of Durham
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