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Report Findings Daytona Wastewater Treatment Explosion
Mike Marinan
Senior Safety Consultant
Public Risk Underwriters

The US Chemical Safety and Hazard Investigation Board has released their findings from the January 11, 2006 explosion at the Bethune Point Wastewater treatment plant in Daytona Beach.

A brief re-cap of the circumstances:

Two mechanics and one employee were dispatched to the Bethune Point plant to repair hurricane damage to metal roofing that had been erected to provide shade to two chemical storage tanks. The area of the roof they began to work on was located above a methanol storage tank approximately 30 feet above ground. The lead mechanic determined that they could remove the roof using a city-owned crane and rented man-lift.

The lead mechanic and mechanic cut the roof into sections using an oxy-acetylene cutting torch and attached the cut sections to the crane hook to lower the sections to the ground. They eventually reached an area directly above the methanol tank vent. Sparks showering down from the cutting torch ignited methanol vapors coming from the vent, creating a fireball on top of the tank. The fire flashed through a flame arrester on the vent, igniting methanol vapors and air inside the tank, causing an explosion inside the steel tank.

The lead mechanic and the third worker were in the man-lift basket over the methanol tank when the ignition occurred. They were likely burned from the initial fireball and burning methanol vapors discharging from the tank vent under pressure from the explosion. The lead mechanic, fully engulfed in fire likely jumped or fell from the man-lift. Emergency responders found his body within the concrete containment next to the tank. The third worker stated that he had been partially out of the man-lift basket leaning over the roof when the fire ignited. On fire, he climbed onto the roof to escape. Co-workers, unable to reach him with a ladder, told him to jump to an adjacent lower roof and then to the ground. He sustained second and third degree burns over most of his body and was hospitalized for 4 months before being released to a medical re-hab facility. Methanol sprayed from separated pipes onto the crane, burning the crane cab with the mechanic inside. On fire, he exited the cab and was assisted by co-workers. He died in the hospital the following day.

There were multiple causes found, the four root causes were identified as the following:
1. There were no adequate controls for hot work at the Bethune Point WWTP
2. A hazardous communication program existed that didn’t effectively communicate the hazards associated with methanol at the site.
3. There were no programs to evaluate the safety of non-routine tasks.
4. The piping and valves in the methanol system were constructed of PVC in lieu of steel.

 
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This was a tragic accident and in the words of lead investigator Robert Hall of the US Chemical Safety Board, “ A preventable accident”. There was a bigger picture issue identified in the report and highlighted a situation that all Risk Managers in this state have become painfully aware of.

“ The city of Daytona Beach was not required to comply with or implement OSHA regulations. Had the city implemented hot work and HAZCOM programs conforming to OSHA safety standards, the hazards of using a torch in proximity to the methanol tank would likely have been identified and possibly prevented.” You will note that the report was generated by the U.S. Chemical Safety and Hazard Investigation Board and not the Occupational Health and Safety Administration. OSHA will not access a public sector work site, not if asked, if responding to a complaint or even a fatality.

The Florida Occupational Safety and Health Act, enacted in 1982, directed the Florida Division of Safety to assist employers to make their workplaces safer and decrease frequency and severity of on-the-job injuries. Public sector employers were required to comply with most OSHA regulations and the state had the authority to cite public employers.

We are all aware that the legislature repealed Chapter 442 and closed the Division in 1999. Until its repeal, the legislature appropriated approximately $11 million per year for occupational safety and health programs, which funded a statewide staff of 146 employees, 125 of which were designated exclusively to the public sectors compliance to occupational safety and health requirements.

In addition to the repeal, the governor issued an executive order, State agencies and public sector employers were directed “to voluntarily comply” with General OSHA standards. The Florida legislature provided no funding to state agencies, cities or counties to implement the executive order.

In the glow of the media attention after the release of Chemical Safety Boards findings, there was mention of re-addressing this situation. Unfortunately it may take one or more of the tragedies that occurred in Daytona to make that happen. Print article . . .

 

   
©2007 Public Risk Underwriters All Rights Reserved
 
DON’T CALL ME, I WON’T CALL YOU
Michael J. Roper and Anna E. Engelman
Bell & Roper, P.A.
 
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Statistical figures per motor vehicle related accidents that have involved the use of cell phones by employees are steadily on the rise. Due to this, municipalities are now finding it necessary to develop cell phone use policies to govern cell phone use by employees, especially those employees with work duties that include the operation of a motor vehicle. The Safety & Risk Management team recently approached Mr. Michael J. Roper of Bell & Roper, P.A. and requested his assistance in sharing any expertise and information he may have on the subject. In the following article Mr. Roper will cover some general items related to the subject, which include statistical figures, safety tips and litigation outcomes.

Cell phone use has reached a new high. The Cellular Telecommunications and Internet Association (“CTIA”) estimates the number of cell phone subscribers, as of June 2006, has risen to over 219 million people in the United States, up more than 24.9 million from the prior year. More cell phones mean more distracted drivers on the roadway. A study conducted at the Harvard Center for Risk Analysis estimates 300,000 highway injuries, over 2,600 deaths per year, and approximately 1.5 million “instances” of property damage are a result of cell phone use. The increase of incidents on the road has led to an increase in litigation, which has exposed not only the cell phone user to liability, but also his employer.

Pursuant to the vicarious liability doctrine, employers may be held liable for its employees negligent acts (e.g. careless driving while talking on the phone) which occur in the course of employment. Specifically, an employer may be liable if it supplied the phone, or encouraged the driver to use it, regardless of whether the call is business-related. Additionally, the dangerous instrumentality doctrine imposes liability upon vehicle owners by mere ownership of the vehicle, regardless of any negligence on the owner’s part. Although governmental employers cannot be held liable under this doctrine, it is another potential exposure for private and non-governmental employers.

Employers with deep-pockets are an easy target, and without a clear cell-phone use policy, the employer may be exposed to liability. And, as seen in recent cases, the pay-out may be crippling. The potential financial exposure is illustrated by the actual jury verdicts on record.

In 2001, in the largest verdict in Miami-Dade County’s history, a jury awarded $21million dollars to a 78 year-old female, Alicia Bustos, who was a passenger in an automobile rear-ended by Lazaro Leiva, a truck driver for a lumber company, Dyke Industries, Inc. Bustos sustained injury which required permanent bedside care. Leiva, who was in the scope of his employment during the accident, initially denied he was using his cell phone just prior to impact, but his cell phone records told a different story. The jury found Dyke Industries liable in the incident as Leiva’s employer. The case settled for $16.1 million after the verdict.

Other states have seen similar lawsuits. In 1995, Robert Tarone, a Salomon Smith Barney stockbroker, while driving and talking on his cell phone in Allentown, Pennyslvania, ran a red light and hit and killed motorcyclist Michael Roberts (a 24 year-old father of two), while Tarone was on his way to a non-work related dinner. In 1997, Roberts’ survivors filed suit against Smith Barney. Although Smith Barney did not provide their employees a cell

 

 

phone, and there was no evidence Tarone was using his cell phone at the time of the accident,Tarone stated he was making “cold calls” for Smith Barney during the time of the incident. Based on employee testimony that Smith Barney encouraged “cold calls” on personal time, plaintiff alleged Smith Barney was liable. Specifically, plaintiff asserted the employer was liable for encouraging cell phone use without educating them on potential risks. Smith Barney, uncertain it could obtain a favorable verdict at trial, settled with plaintiff for $500,000.

Based on these and other similar cases, companies have taken action. Among the first, New York City Taxi and Limousine Commission, passed a complete ban on its drivers’ cell phone use. Additionally, Exxon Mobil has implemented a cell phone use policy, which prohibits its employees from talking on the phone while driving company vehicles. It did so afterit conducted its own study which found the braking reaction time of cell phone drivers to be three times longer than that of drunk drivers. Additionally, its study found cell phone drivers are as likely to rear-end the car ahead of them as drunk drivers. Other companies following suit include UPS, which does not provide its drivers phones and forbids employees from talking on their own cell phones while steering.

Although there have been no reported instances of a government entity implementing a similar policy, there does not appear to be any law or regulation which would prohibit one from doing so. There is no Florida law which prohibits a cell-phone use policy, and its only law vis-a-vis cell phone use is to require drivers who use a head set with a cell phone to use a head set which provides sound through one ear and allows surrounding sound to be heard with the other ear. This law does not address implementing a cell phone use policy. There appears to be no state or federal law which prohibits a private business or government entity from implementing a cell phone use policy.

For an entity considering a cell phone use policy, the following options may be considered:

  • Ban cell phone use entirely
  • Require an employee to pull off the road prior to using a cell phone
  • Require hands-free headset device
  • Prohibit personal phone calls
  • Inform clients of the cell phone policy
  • Limit time allowed for cell phone use
  • Require all employees to sign the cell phone use policy

Employers implementing a cell phone use policy should take the necessary steps to ensure it is followed. Worse than not having a policy, would be to have to convey to a jury an employer implemented a policy, but failed to enforce it. Print article . . .

©2007 Public Risk Underwriters All Rights Reserved

 

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Lake Mary, Florida  32795-8455