Builders fined in death of worker

Friday, March 24, 2000 | 11:37 a.m.

The Nevada state worker-safety program has fined two construction companies nearly $30,000 for a trench collapse that killed a worker in Henderson in September.

The Nevada Occupational Safety and Health Enforcement Section, the state-managed arm of the federal Occupational Safety and Health Administration, fined Utah-based Ellsworth-Peck Construction Services $22,850 for four "serious" violations of federal excavation rules and one violation for failure to maintain written safety program requirements.

Xpert Xcavating, also based in Utah, was fined $6,000 for four "serious" violations of the federal excavating rules. Xpert Xcavating was the subcontractor working for Ellsworth-Peck at the site of the $8 million Henderson water-treatment plant expansion.

Kenn Egbert, 36, of St. George, Utah, was killed and two other workers injured in the trench collapse. Egbert was identified as the son of Xpert Xcavating's owner.

Workers and union organizers on the nonunion project charged that both the general contractor and subcontractor had ignored warnings that the trench was unsafe.

The initial government action against Ellsworth-Peck included a "willful" violation and about $90,000 in fines, said Jimmy Garrett, OSHA's Nevada district manager. The fine amount and the "willful" designation, a more serious category of violation, were reduced during post-inspection conferences.

Xpert Xcavating's fines should be final in two to three weeks, Garrett said.

Fines for industrial workplace safety violations are typically reduced during the process of inspections, notices of violation, government-company conferences and appeals.

Federal rules call for "adequate protective systems" to ensure that walls do not collapse when a trench or excavation is deeper than 5 feet. The excavation in Henderson, about 20 feet deep, 25 feet wide and 30 feet long, lacked wall supports.

The rules also require regular safety inspections and on-site worker familiarity with safety rules.

According to an online search of OSHA records, Ellsworth-Peck has a record of almost three-dozen violations at worksites in Nevada, Colorado, Utah and Wyoming since 1994. The company record includes a May 1999 fine of $12,000 for multiple "serious" violations of excavation rules at a Colorado worksite.

In December, the company was fined another $5,600 for failing to provide adequate fall-protection systems or training at another Colorado worksite. Post-inspection conferences reduced the ultimate fine to $3,000.

Garrett said the companies have agreed to provide additional training to their employees and ensure adequate on-site inspections to prevent a recurrence of the accident.

"All parties involved realize something more could have been done" to prevent the accident, Garrett said.

Ron Peck, Ellsworth-Peck vice president, said the company's previous violations were for small issues, and that the company has a good record over the last 15 years.

"This is the first accident we've had that somebody has lost as much as a finger," Peck said.

The September accident did not result in a "willful" violation, he noted. Some violations are a part of doing business, Peck said.

"In a bigger company that works in multiple areas you're going to run into some of these things," he said.

Less than two months after the trench collapse, while the company was still under investigation for the accident, the city of Henderson awarded Ellsworth-Peck a $1.3 million contract for a new water-system flow control and metering station.

The fines and promises by Ellsworth-Peck to improve safety training didn't mollify Daniel O'Shea, an organizer with the Southern California-Nevada United Brotherhood of Carpenters.

"It's nonsense. That is a company that has been fined so many times for safety violations that it is incredible," O'Shea said. "Twenty-two thousand dollars and there's a guy dead in a trench -- it's ridiculous.

"If this was any other industry ... Tell me if it would be $22,000 if it was a doctor that killed that guy," he said.

Fines, and an agreement from the company, won't change Ellsworth-Peck, O'Shea said.

"All the training in the world won't make a company make decisions that are better for worker safety," he said. "Ellsworth-Peck just got away with it again."

Peck said the criticism from the union wasn't fair.

"They've been turning the pressure on us to sign the union agreement," he said. "Nobody feels worse about the accident than we do."

Launce Rake covers growth issues for the Sun. He can be reached at (702) 259-4127 or by e-mail at lrake@lasvegassun.com.