Subway Builder Won’t Have to Face Criminal Charges

Despite a last-minute protest from the state’s workplace protection agency, the Los Angeles city attorney has decided not to file criminal charges against a subway builder and one of its construction chiefs over the alleged endangerment of workers in a tunnel that collapsed under Hollywood Boulevard nearly a year ago.

Assistant City Atty. Edmund E. Fimbres said he had concluded after a seven-month investigation that the lack of an injury or death in the June 22 sinkhole incident would have hindered the misdemeanor prosecution before a jury.

“We have a situation where we can only say something could have happened,” said Fimbres, chief of the special enforcement unit. “You can prove practices were unsafe if you have a death or maiming. But we don’t have that.”

But a spokesman for the California Division of Occupational Safety and Health said he was “very disappointed.”

“We felt we had strong evidence that could hold up in court,” said Cal/OSHA spokesman Rick Rice, who acknowledged that the agency had lobbied vigorously for prosecution in a meeting with Fimbres on Thursday. “But we do understand the city attorney’s constraints.”

Rice said Cal/OSHA will now proceed with an administrative process that could result in fines of up to $70,750 against tunneling contractor Shea-Kiewit-Kenny. The agency has charged SKK with four violations of state labor law deemed to be serious enough to cause death or major injury. The contractor’s appeal of the charges had been put on hold while the city attorney’s investigation was pursued.

John C. Morissey, attorney for the contractor, said he was gratified by the city attorney’s decision. “SKK employees took proper precautions that morning and no one was hurt. That speaks volumes about the way our company behaved,” he said.

The city attorney’s office focused on events from 1:30 a.m. to 11:35 a.m. in twin subway tunnels being dug below Hollywood Boulevard between Edgemont Street and Berendo Avenue. According to a Cal/OSHA report, workers the night before were completing the job of tearing out concrete segments that had been placed improperly in the southern tunnel when an inspector noticed a lot of water seeping into the tunnel from the roof.

According to the Cal/OSHA report, a manager for the job’s construction manager, Parsons-Dillingham, believed that a broken water main was responsible for the seepage. As SKK foremen and miners attempted to shore up the tunnel, calls to the Department of Water and Power to shut off the main were unheeded, according to the report. At 6 a.m., the tunnel suffered its first partial cave-in. No one was injured.

An independent review of the incident by MTA consultants absolved the DWP of responsibility for the cave-in, declaring the water from the main “insignificant” and placing the blame instead on a greater than expected amount of water in soil above the tunnel and on wooden “footblocks” used to support metal ribs in the tunnel during the remaining operation.

The city attorney primarily focused on whether SKK construction superintendent Norman Hutchins recklessly required miners to shore up the tunnel before 6 a.m. knowing that it was unsafe, ordered them to clean out the muck afterward, and lied to a Cal/OSHA inspector and firefighters about whether workers were in the tunnel.

According to Cal/OSHA, Hutchins ordered workers to clear mud and debris from the northern tunnel--which had not caved in--so that he could check on its water pumps. The state contended that the order contravened directives from the Metropolitan Transportation Authority’s safety director, and SKK’s own safety officer, to stay out of the tunnels.

In its report, Cal/OSHA contended that Hutchins lied to inspector Joe Doyle, who arrived on the scene at 10:30 a.m., ordered the tunnels closed, and asked if any SKK workers were in the tunnel.

The report contends that Hutchins denied in this conversation, which took place on the surface, that workers were in the tunnels. When Doyle discovered that 12 miners and eight firefighters were in fact down below, according to the report, he ordered them out.

At 11:35 a.m., the southern tunnel collapsed a second time, and tons of water rushed through it--pushing heavy machinery and timbers in a four-foot-high roar of destruction.

According to an account by Fire Capt. Christopher R. Burton contained in the report, “Firefighters and miners at the bottom of the shaft were scrambling for their lives as the bottom of the shaft began to fill with mud.”

Morissey, the SKK attorney, said that Hutchins merely misunderstood Doyle’s question--believing he had asked if there were workers in the southern tunnel, which had collapsed at 6 a.m., rather than the northern tunnel, where they were mucking out debris. Hutchins could not be reached for comment.

Reached at home in San Bernardino on Monday, Doyle said he was disappointed, adding: “It was only God’s will that they didn’t lose 20 people that morning.”