State agency slaps BART with a nearly $220,000 fine for 2013 worker deaths; blames management, safety culture but no one is prosecuted and goes to jail

State agency slaps BART with a nearly $220,000 fine for 2013 worker deaths; blames management, safety culture but no one is prosecuted and goes to jail
State agency slaps BART with a nearly $220,000 fine for 2013 worker deaths; blames top management, safety culture

BART employees, along with the National Transportation Safety Board investigate the scene on Sunday, Oct. 20, 2013, where a four-car northbound Bay Point train was involved in the deaths of two workers in Walnut Creek, Calif. (File photo by Susan Tripp Pollard/Bay Area News Group Archives)
By ERIN BALDASSARI | | Bay Area News Group
PUBLISHED: October 6, 2017 at 1:53 pm | UPDATED: October 6, 2017 at 4:53 pm
A state regulatory agency is slapping a nearly $220,000 fine on BART after concluding that its top management and safety culture were to blame for the deaths of two workers during the 2013 labor strikes.

The decision comes nearly four years to the day after a BART train, operated by a trainee with no direct supervision, struck and killed BART employee Christopher Sheppard, 58, of Hayward, and a contractor, 66-year-old Fair Oaks resident Laurence Daniels. The California Public Utilities Commission launched its investigation last year into the workers’ deaths, following investigations from other state and federal agencies.

It’s the second fine levied against BART for the incident, though BART is still appealing the first penalty it received in 2014 from the California Division of Occupational Safety and Health (Cal-OSHA). That agency in July downgraded its initial penalty of $210,000 to just $95,000, which BART is asking Cal-OSHA to reconsider. And, in October, BART agreed to pay $300,000 to settle a wrongful death suit brought by Daniels’ family.

The decision, from the presiding officer in the investigation, Administrative Law Judge Kimberly Kim, describes the violations as a “breach of commitment” from top managers to enforce safety standards in their departments. Kim’s decision will become final in 30 days, unless the full commission decides it warrants review, or if BART files an appeal, according to a commission spokesman.

“These are serious and egregious violations, particularly in view of the fact that they were violations committed by BART’s top level veteran managers, reflecting BART’s organizational and management culture and attitudes,” the decision reads.

In a statement Friday, BART spokeswoman Alicia Trost said the agency was still determining whether it would appeal the decision. In the past, it has denied its safety culture was to blame, citing instead the failure of the workers to follow its policies for working near the tracks, as well as the unusual circumstances surrounding the 2013 strikes, when managers were performing essential tasks and the agency was preparing to offer limited service from the East Bay to San Francisco.

In a formal response to the commission, BART contended that the supervisor in charge of overseeing the trainee was an experienced and qualified train operator. But the commission’s investigation revealed the supervisor was not in the cabin with the trainee at the time and had been using his cellphone throughout the day, a possible violation of both state regulations and BART’s own policies.

The supervisor sent or received 47 text messages and logged 11 calls between 6 a.m. and the time of collision, 1:44 p.m., on Oct. 19, 2013, including one text message sent just one minute before the men were struck by the train, the commission’s investigation found.

It took just 4.7 seconds from the moment the operator in training saw Daniels and Sheppard, who were out inspecting a dip in the tracks near the Walnut Creek station, and the time of impact. The inexperienced operator slammed on the emergency brake and tried to sound the train’s horns to alert the workers but hit the door control button instead, according to the commission’s investigation.

Two state investigations and an investigation by the National Transportation Safety Board also cited the inherent danger in a workplace procedure BART was employing at the time, called “simple approval.” That policy allowed workers to operate within a certain distance of the tracks and made workers responsible for their own safety.

Under the procedure, the workers should have designated a member of their team to watch for passing trains, but that didn’t happen the day Daniels and Sheppard were killed.

BART acted quickly to eliminate the procedure, and the agency now requires all workers to request a “work area clearance,” a more stringent policy that prevents trains from entering areas where workers are present. The agency also requires three-way communication among workers, the train control center and train operators and reduced speeds near work zones. And it has invested $4 million in physical safety barriers, among other changes that resulted from the workers’ deaths.

“Safety is our highest priority,” Trost said Friday. “There is nothing more important than providing a safe working environment for our employees.”

But, as part of the decision, the commission is requiring even more stringent action during a three-year probationary period, mandating BART immediately begin tracking and submitting annual reports of any violations of safety rules, practices, policies or procedures, along with the corrective action taken as a result of those violations. The agency must re-evaluate its current safety training programs and design a plan to improve their effectiveness.

The agency must also develop and implement “annual safety rules, practices, policies, procedures and culture refresher courses for all of its essential managers” and brief the commission annually on its efforts. The commission will monitor BART’s compliance during the probationary period, after which the commission could issue more penalties if BART violates the order or extend the probationary period, according to the decision.

Hearing officer recommends $220,000 fine for BART in 2013 deaths

By Bob EgelkoOctober 6, 2017 Updated: October 6, 2017 7:25pm
BART should be fined $220,000 and overhaul lax safety rules and practices that contributed to the deaths of two workers on a track near Walnut Creek in 2013, a state hearing officer recommended Friday.

“The evidence in this case shows that there may be a serious safety culture problem at BART,” said Kimberly Kim, an administrative law judge for the state Public Utilities Commission.

Christopher Sheppard, 58, of Hayward, a BART track engineer, and Lawrence Daniels, 66, of Fair Oaks (Sacramento County), a contract employee, were fatally struck by a train in October 2013 while they were checking on a reported dip in the tracks between the Walnut Creek and Pleasant Hill stations.

The accident happened on the second day of a strike by union employees that lasted four days. The train, traveling at 60 to 70 mph, was being operated by a manager who was being trained to take over driver duties in the event of an extended walkout.

At the time, BART trains did not slow down during routine track maintenance, and workers were supposed to look out for their own safety. A coroner’s report found that neither of the workers had been acting as a lookout for oncoming trains.

State regulators with Cal/OSHA found the practice unsafe in 2014 and fined BART $210,000. The district has also settled a suit by Daniels’ family for $300,000. BART has since changed its policy.

Kim found numerous safety violations in Friday’s decision. She said a veteran BART manager, Paul Liston, who was supposed to be training and supervising the operator, instead had been on his cell phone for hours, including the moments before the accident. Five “top-level managers” on the train did nothing to stop him, Kim said.

She said neither Liston nor the train operator, Richard Burr, sounded the horn as they approached the work site, and other managers failed to warn them of the presence of track workers. Kim also said BART was supposed to investigate the accident and file its report with the Public Utilities Commission within 60 days, but did not submit its report until January 2017.

Kim said the violations warranted $659,000 in fines, but recommended that BART pay only one-third of that amount while upgrading its practices. She said the transit district, within six months, should propose improvements to its safety training programs and require managers to undergo at least 40 hours of training, with the PUC monitoring its compliance.

BART or a PUC member can seek review of Kim’s decision by the full commission. BART spokeswoman Alicia Trost said the district is reviewing the decision.

After the 2013 accident, Trost said in a statement, “BART moved swiftly to implement profound changes to its trackside procedures.”

Bob Egelko is a San Francisco Chronicle staff writer. Email: begelko@sfchronicle.comTwitter:@egelko