Legislators Grill BART Management

by Bay City News

Two BART managers were grilled by California legislators at a hearing in San Francisco today about why BART kept a controversial safety procedure in place after a worker was fatally struck by a train in 2008 and a state agency ordered the protocol changed.  

The procedure, known as "simple approval," made employees working on and along the tracks responsible for their own safety and required them to be able to clear the track in 15 seconds if a train approached.   

 BART permanently suspended the procedure last month after two workers were hit and killed by a train as they checked on a track segment near Pleasant Hill during the recent BART strike on Oct. 19.    

Five years earlier, the procedure was also in use when BART employee James Strickland, 44, was hit and killed by a train while inspecting track in Concord on Oct. 14, 2008.  

"In 2008, there was a fatality," Assemblyman Phil Ting, D-SF, told BART Assistant General Manager Paul Oversier during an Assembly Labor and Employment Committee hearing at the State Building in San Francisco. 

"Can you tell us why, after that incident, simple approval wasn't abolished?" Ting asked.  

"That's a gut-wrenching question," Oversier answered.  

Oversier said BART officials had focused on trying to "fix the problem" and thought they had done so by making some changes after an earlier fatality in 2001 and more changes after Strickland's death.   

"In both 2001 and 2008, there were significant lessons learned and we did make major changes in it, and did more training," he said. "After this last accident, we realized we can't have any more lessons learned. We have to stop this," Oversier said.   

The two revisions of the simple-approval protocol added more precautions, including a 2008 requirement that employees must work in groups of at least two, with one person acting as a lookout. But the procedure continued to hold workers responsible for their own safety and require them to be able to exit tracks within 15 seconds when trains traveling at up to 70 or 80 miles per hour approached.

"In an overabundance of caution and recognizing it's going to have an impact on our service reliability, our budget and maybe our hours of operation, we decided we can't let this happen again," Oversier told the committee. He said BART previously used the procedure more than 8,000 times per year and that it "was the norm in our industry." BART trackside workers are now covered instead by the transit district's work-order protocol, which requires that oncoming trains be stopped, diverted, or slowed to 27 miles per hour.   

Last week, the California Public Utilities Commission added other requirements for rail transit agencies, including a mandate for three-way communication among central controllers, train operators and trackside maintenance workers. In a separate proceeding begun after Strickland's death, the California Division of Occupational Health and Safety cited BART in 2009 for violating state industrial safety regulations and ordered it to abate, or correct, the simple-approval procedure. But the abatement order has been on hold while BART appealed it, first within the state agency and most recently in an Alameda County Superior Court lawsuit.   

Oversier and Chief Safety Officer Jeff Lau told the committee they did not know whether BART's lawyers will continue to pursue the lawsuit, which is scheduled for a case management hearing on Jan. 7.  Lau testified that BART has abated "the majority" of 46 citations received from Cal/OSHA in the past 12 years, but said he couldn't say exactly how many corrections were made, either after appeals or while appeals were pending.  

"I'm extraordinarily disappointed" with the lack of specifics, said Ting, who noted Lau had been on notice of the hearing since June. He told the two managers, "It is very concerning the agency seems to not be working with Cal/OSHA to address very serious issues. I would urge you to be working much more closely with Cal/OSHA and the CPUC rather than appealing these citations over and over again."  

Ting originally asked Committee Chair Roger Hernandez, D-West Covina, in June for a hearing on why BART had appealed many of its citations, including four issued in connection with Strickland's death. The hearing was postponed to today because of the BART contract negotiations this summer and fall. After BART engineer Christopher Sheppard, 58, and contractor Laurence Daniels, 66, were fatally struck by a train on Oct. 19, the emphasis of the session changed to include a focus on why simple approval had been left in place. In its investigation of the 2008 fatality, Cal/OSHA initially cited BART for four serious violations of safety regulations and set a $28,685 fine.   

After two rounds of appeals by BART before an administrative law judge and a Cal/OSHA appeals board over four years, the agency reclassified two of the violations as "willful" and raised the fine for them to $108,250.Those citations were for the simple approval plan and allowing shrubbery to obstruct a path by the track where Strickland was working.  Cal-OSHA said simple approval violated a regulation mandating "controls to safeguard personnel during railcar movement" in two ways: it didn't require train operators to be notified of maintenance employees working at or near the tracks, and didn't require that workers be notified of oncoming trains.    BART filed its Superior Court challenge in July, a month after Cal/OSHA issued a final decision denying reconsideration.   

"Delay of abatement is clearly an issue of concern," California Industrial Relations Department Director Christine Baker told the committee. The department is the parent agency of Cal/OSHA. Baker said Cal/OSHA recently established procedures to expedite appeals of citations of serious or willful violations. She said employers are free to correct an alleged violation even while they appeal it, without having to admit wrongdoing, and that many do so.   

Several union representatives charged during their testimony that BART lacks a "culture of safety" and makes running the trains on time a higher priority than worker and passenger safety. "Workplace safety is unfortunately hampered by top-down concern for on-time performance," said Jesse Hunt, a train operator representative in Amalgamated Transit Union Local 1555.