Bent low over the shattering racket of the power drill he was driving into solid rock, without a radio and wearing ear protection that muffled the shouts of other workers, Sam Fitzpatrick may never have seen the boulder that killed him.
But a dispassionate observer might have seen the accident, or another like it, coming.
Construction crews working to clear a path for the run-of-river hydropower facility on Toba Inlet, north of Powell River, were well aware that the slope they were working on was unstable. Just the previous day, according to a reconstruction of events by WorkSafeBC, heavy equipment working uphill had dislodged a boulder that tore through the construction area, damaged other machines. Site managers working for Omaha-based Pieter Kiewit Sons Inc., had announced that no one would be assigned again to work downhill from heavy equipment.
And that very morning, Feb. 22, 2009, Sam, 24, and his younger brother Arlen, 22, who normally worked on the site as rock scalers removing unstable rocks from high angle rock faces, had been ordered to hand drill a large boulder. They had voiced their shared concern about the previous day's incident to their supervisors. Nonetheless, they were both ordered to get to work -- even as a heavy excavator began to dig into the slope above them.
Over the morning the clear weather turned ugly, bringing a steady, moderate rainfall that soaked into and may have loosened piles of debris above the Fitzpatrick brothers. Shortly after lunch, around 1 p.m., the man operating the excavator upslope saw a boulder rolling down hill and radioed a warning to other workers. Arlen, sitting in the cab of a hoe drill further down, heard the warning. Glancing up to where his brother stood braced over a power drill, Arlen started to run, shouting out the alarm. But it was too late: by the time he reached his brother, Sam was dead -- crushed by the tumbling rock.
Investigators and a judicial review would find later that "deficient safety planning and supervision" and "heedless… wanton" disregard of safety contributed to Sam's death. Inquiries by The Tyee have revealed that Kiewit Sons has amassed a lengthy record of similarly harsh judgments in the United States, and a reputation among construction professionals in B.C. for a hard-driving pursuit of aggressive work schedules.
Nonetheless, the $10 billion a year (revenue) company, with up to 25,000 employees and contractors worldwide, is a common presence on both private and government construction sites in the province -- as well as a substantial contributor to the BC Liberal Party. In addition to its work at the 196 megawatt Toba Inlet power plant for Alterra Energy (formerly Plutonic Power), it was a key partner in the joint venture that oversaw construction of the new Port Mann Bridge.
Between 2005 and 2011, Kiewit also donated $96,575 to the BC Liberals, according to Elections BC.
The 129-year-old construction company's website boasts of having been named by a private consulting company as one of the "Best Workplaces in Canada" in 2012.
Barbara Deschenes, the inspector who investigated Sam's Fitzpatrick's death for WorkSafeBC, came to a different conclusion. Her report on the fatal incident found "deficient safety planning and supervision" and "lack of effective risk assessment" at the Kiewit-managed site. In its wake, her agency assessed its subsidiary, Peter Kiewit Infrastructure Co., a record $250,000 fine.*
In response to a company appeal of the penalty, the Workers Compensation Appeals Tribunal (WCAT) reiterated many of Deschene's criticisms, while reducing Kiewit's penalty. Saying it could not be certain that the boulder that killed Sam Fitzpatrick was "blast rock" from the work area above him, the tribunal reduced the original fine to just under $100,000.
Nevertheless, the tribunal concurred that Kiewit had "committed high risk violations with reckless disregard" for their consequences.
"In these circumstances," its judgment read, "we would describe it as 'heedless,' 'wanton,' 'extreme,' 'gross,' and 'highly irresponsible' for the employer to have known that there was a potential for rocks to roll through the worksite but not take adequate steps to contain this risk by way of a detailed and carefully monitored scaling program."
'Pressure to go faster'
Peter Louvros is an expert at rock scaling and slope stabilization. He worked for Kiewit on the Sea to Sky Highway upgrade for the 2010 Olympics and later as a contractor at Toba Inlet. He also became very critical of the company and what he saw as its safety shortfalls.
Kiewit hired Louvros as a contractor to complete the Toba rock slope work after Sam Fitzpatrick's death. Later, he drafted an affidavit detailing both his negative experiences with Kiewit management on the Sea to Sky and his assessment of factors that may have contributed to Sam Fitzpatrick's death.
"When scheduled maintenance of slopes (rock scaling after blasts or excavation operations)" was required on the Sea to Sky Highway, Louvros wrote, "management and the general superintendents would direct machinery to proceed with work in the safety perimeter, resulting in scaling operations being suspended by myself due to the unsafe environment."
In conversation with the Tyee in late January, Louvros compared that experience of Kiewit managers ordering heavy equipment to work too close to his scaling teams on the Sea to Sky, to the conditions Sam and Arlen Fitzpatrick were working under.
Louvros said he eventually quit that project because of his safety concerns. "When I walked into the manager's office and personally handed him my resignation," he wrote, "I stated to him 'You will one day kill someone if you keep operating in this manner.'"
He was equally scathing in his assessment of the company's conduct at Toba Inlet.
"If I were to rate the management support for worker and public safety, with one being poor and 10 being excellent, I would be required to rate their support as one," he wrote, citing multiple occasions on which Kiewit supervisors ordered his scaling crew to work downslope from active equipment or otherwise endangered their safety.
Other veterans of the company's worksites told The Tyee that Kiewit nurtures a culture of speed and corner-cutting on its projects.
Mike Pearson, a blasting superintendent for Kiewit on the Sea to Sky project, got in touch with Sam's father, Brian, when he read about Kiewit's challenge to WorkSafeBC's penalty assessment. "When I worked for Kiewit, we got asked to do stupid, dangerous things," he told the Tyee. "There is no way they should get away with this."
Dean Riggs, a heavy equipment operator who served as a union shop steward and safety committee member during a decade's experience with Kiewit in B.C., gave a similar account.
"There is always a lot of pressure to go faster," Riggs told the Tyee. He described the supervisor who ordered the Fitzpatrick brothers to work downslope from heavy equipment on the day of Sam's death as "a real tyrant" who had previously fired workers for refusing unsafe work. On one occasion, he recalled, another Kiewit superintendent ordered a truck driver who had failed a qualifying test and been recommended for further training to take control of a 35-ton rock truck.
Another worker, who has been employed on Kiewit sites since he got out of high school in 2006, called the company's safety message hypocritical. "They make a lot of noise about safety in public, but then they tell you to do unsafe work on the job."
Unwilling to be quoted by name because he still works in heavy construction and says he fears retaliation from the company, he said that site managers placed pressure and incentives before workers to discourage them from reporting injuries. "When I got hurt doing something by hand we should have had a crane for, they pressured me not to report it to WCB. Now I'm sorry I didn't."
Not the first death
Sam Fitzgerald's death wasn't the first on the Toba Inlet project. Only a few months earlier, a pilot and six workers (five of them Kiewit employees) being flown to the site died in a plane crash. Investigators for the Federal Transportation Safety Board found that the company routinely pushed pilots to fly under marginal conditions. Although it cautiously said it had found no evidence of "overt" pressure on the pilot to fly on the day of the accident, it noted that Kiewit's travel coordinator had previously pressured the airline to ignore safety concerns, and that such pressure continued to be applied after the fatal crash.
The company has had other troubles in B.C. Both BC Hydro and the BC Transmission Corporation named it in a lawsuit in 2009, alleging the company had failed to pay for consulting services, and seeking $400,000 in damages. Last December, Kiewit endured a storm of criticism and ridicule over the notorious "ice bomb" debacle on the Port Mann bridge, for which the company was contracted for "design and build" responsibilities. Earlier, one of its cranes on the same project collapsed, hurling a huge slab of bridge deck into the Fraser River.
The lethal Toba Inlet project was back in the news again this month [in March], when its current owner, Alterra Power, told the Vancouver Sun that an early December landslide had done so much damage to a portion of the penstock on the Montrose Creek section of the project (where Sam Fitzpatrick died), that it will require up to $10 million and months of work before the project is again operational.
B.C. isn't the only jurisdiction in which Kiewit has had serious safety problems. Tyee research identified several other deaths over the last two decades among U.S. employees on projects it managed alone or with joint-venture partners, earning the Nebraska company repeated citations for failures to enforce safety procedures and allegations of improper reporting of injuries, deceptive record keeping on work quality, and allowing drinking on the job (see sidebar).
The Tyee contacted both Kiewit's B.C. office and its Omaha headquarters seeking a response to the multiple allegations about company callousness to safety, but was informed that no one was available for an interview. The company also failed to respond to a request for clarification about its precise relationship to various subsidiaries and joint ventures cited for safety and quality problems in the U.S. and B.C.
The Tyee's inquiries did prompt an email from Greg Johnson, manager of communications for Transportation Investment Corporation (TI Corp), the public agency in charge of the Port Mann/Highway 1 Project. It read, in part: "TI Corp is very pleased with the performance of Kiewit/Flatiron in the delivery of the Port Mann/Highway 1 Improvement Project. We have the highest confidence in Kiewit/Flatiron's work, and they adhere to strict and multilayered quality assurance processes to ensure all construction meets design and quality criteria."
'Ban Kiewit from BC': Father of killed worker
Few B.C. taxpayers know how much work Peter Kiewit Sons Company and the joint ventures in which it participates do in this province. It's a lot.
In addition to the $2.46 billion Port Mann/Highway 1 project, Kiewit has been a major player in development of the SkyTrain system, the pre-Olympic Sea to Sky Highway expansion, and now an $84 million runway at Vancouver International Airport.
Sam Fitzpatrick's dad thinks Kiewit should be blackballed from Canada for its flawed safety record. Brian Fitzpatrick also thinks Kiewit's management ought to be charged criminally under a seldom-enforced statute -- named the "Westray Law" after the infamous East Coast mine disaster that prompted it- -- which allows for the prosecution of bosses who endanger their workers.
The Tyee asked B.C. Transportation Minister Mary Polak whether Kiewit's record gave her any concern about its large role in the province. Her email reply:
"Every life lost in the work place is tragic and government, ministries and contractors work very hard to ensure the safety of workers on all our projects. I cannot speak to what has occurred in other jurisdictions, but I am confident that for the Port Mann Highway 1 Project, TI Corp has the necessary oversights in place to ensure that Kiewit meets the safety and performance expectations, and that all B.C. regulations are adhered to -- as is the case with all ministry projects undertaken in B.C."
A knowledgeable observer of provincial building projects, who has decades of experience both within the Ministry of Transportation and in the heavy construction industry, confirmed that the ministry awards a lot of its largest contracts to the company. Indeed, he said, Kiewit is "the biggest road and bridge building presence in the province. They do good work, but they are notorious for how belligerent they are with front line provincial employees."
Asking to remain anonymous, this observer told The Tyee that front line ministry staff were well aware that Kiewit is a powerful company with direct access to BC Liberal ministers, party power brokers and senior officials throughout the provincial government. "Nothing is ever put in writing, but there is a top-down driven culture in government that basically says, 'Don't get in the way of the big companies like Kiewit making a profit,'" he said.
*Story correction, Dec. 5, 2016: A previous version of this article included a quote from a news article in the Province newspaper which, after publication, published a retraction and removed the quote. Upon learning this today, The Tyee has done the same.