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KC’s water department, not OSHA, will look into death of city employee

Updated: 2013-07-27T04:10:43Z

By CHRISTINE VENDEL and MARK MORRIS

The Kansas City Star

As Donald Fenton sealed two pipes in a manhole Monday, an inflatable plug intended to stanch sewage flow burst, filling the manhole with water and killing Fenton.

Federal Occupational Safety and Health Administration regulations require employees working in manholes to wear a safety harness with a retrieval line connected to a lifting device for an emergency rescue.

It’s not clear whether Fenton wore the equipment — it’s not mentioned in the police report — or whether it could have saved his life.

But what is clear is that OSHA has no authority over the fatal accident, which occurred behind the new South Patrol police station at 9701 Marion Park Drive in Kansas City.

Federal law exempts public employees from OSHA oversight.

States voluntarily can develop and operate safety programs to cover city and state workers. But Missouri and Kansas are not among the 27 states and jurisdictions with state programs.

That leaves the task of developing safety procedures and investigating workplace accidents involving public employees to each individual agency — in this case, Kansas City’s Water Services Department.

The department’s safety manuals say it developed its standards for confined-space entry to comply with OSHA’s standards. The department provides employee training and strictly enforces the rules, said department spokeswoman Jennifer Kincaid.

She would not address whether Fenton was wearing the required harness, but police reports do not mention one. One report simply states Fenton was wearing a “blue KCMO jumpsuit.”

The reports say after the plug burst, Fenton’s co-workers jumped into the manhole to try to save him. That violated the water department’s rescue procedures, which state that co-workers should use the retrieval system to remove an injured or endangered colleague and “shall not under any circumstances enter the confined space.” The procedures are intended to avoid harm to additional employees.

When the co-workers could not find Fenton, they used a crane to dig a hole next to the concrete manhole and break open the bottom of the manhole, releasing the water and Fenton’s body. Co-workers then tied a rope to Fenton and used the crane to lift him from the freshly dug hole.

Kincaid said the department’s investigation, which should be finished in a few weeks, would provide every detail of what happened, including Fenton’s exact location when the plug burst. It was unclear whether he was in the manhole or inside a smaller sewer pipe.

“Safety is not something we take lightly,” she said. “It’s what keeps us sending our employees home to their friends and families every night, and that’s something we definitely want.”

Even without OSHA oversight, Kincaid said the water department maintains solid safety protocols.

“If the question is, ‘Are we safe?’ I think the answer is yes,” she said.

The kind of accident that killed Fenton is uncommon, but not unheard of.

Inflatable sewer plugs, essentially large rubber bags that are inserted into sewer pipes and then inflated to block the flow of waste during repairs, have exploded and killed or injured sewer workers for decades.

A New York sewer worker suffered seven broken ribs, a broken pelvis and broken legs in September 2011 when a plug exploded from a pipe and rammed him into an adjacent wall, according to court records.

And a research project at the Centers for Disease Control documented at least three similar accidents that resulted in deaths between 1989 and 2007.

In each case, investigators at The National Institute for Occupational Safety and Health urged employers to meticulously follow the manufacturers’ recommendations for the plugs’ installation and inflation and have solid procedures in place for employees working in extremely confined spaces, such as manholes.

Diane Matthew Brown, a health and safety specialist for the American Federation of State, County and Municipal Employees, said she has investigated three such fatal incidents involving members of her international union over the last several years.

“These plugs can fail and when they do, the amount of time you have is just seconds,” Brown said. “People are pulled down into sewage. It’s not a pleasant way to go.”

Brown, who has taught incident investigation classes for the union, said investigators first would interview witnesses and co-workers and question them about their orders and tasks for the job.

Investigators also should inventory how workers used the available safety and rescue resources — such as other employees on the scene, safety harnesses and winches — and learn how long emergency responders, such as firefighters and ambulances, took to arrive, Brown said.

“This is considered some of the highest-risk work that’s out there,” Brown said. “They need to have rescue available immediately.”

The plug should be the focus of intense scrutiny during the investigation, she said, and the questions are almost endless. Were the gauges used to inflate the plug properly calibrated? Was the plug inflated to the proper pressure? Did it have a defect that made it fail or was it too small for the pipe?

“A lot of times they use one that’s too small,” she said.

Investigators also should learn when the plug was last inspected and whether workers had trouble with it on any previous job, she said.

Workplace fatalities involving public sewer workers are uncommon. According to the Bureau of Labor Statistics, 17 government sewer workers died on the job in 2011, the most recent year for which figures are available. Most died because of workplace violence, self-inflicted injuries, animal attacks or transportation accidents.

The federal Occupational Safety and Health Act does not regulate working conditions for the more than 350,000state and local workers in Missouri or the more than 200,000 state and local employees in Kansas.

That’s not good, said Peg Seminario, national director for health and safety for the AFL-CIO.

“It’s appalling,” Seminario said. “We still have 8 million public sector workers who are not protected by this law.”

The union’s recent report on worker safety —“Death On The Job: The Toll of Neglect” — noted that local government employees in both Kansas and Missouri have higher rates of illness and injury than workers in private industry.

“There are no protections for workers to raise safety and health concerns without fear of retaliation,” Seminario said. “The lack of protection comes at a cost to (public) employers in the form of compensation and lost productivity. The costs are huge.”

Both Brown and Seminario support changes to the 43-year-old federal law — written into the “Protecting America’s Workers Act” pending in Congress — that would allow it to cover public employers, such as cities, counties and even school districts.

“OSHA standards are difficult to update,” Brown said. “1970 is not 2013 and it’s time for OSHA to reflect the 21st century.”

To reach Christine Vendel, call 816-234-4438 or send email to cvendel@kcstar.com. To reach Mark Morris, call 816-234-4310 or send email to mmorris@kcstar.com.

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