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DURHAM – A Burlington-based contractor is contesting a citation issued by the N.C. Department of Labor in November as a result of an investigation into the deaths of two employees who were working in a manhole in Durham County in June.

The company, was cited for four alleged serious violations of the Occupational Safety and Health Act of North Carolina related to the deaths of the two men, Jesus Martinez Benitez, 32, of Clayton, and Luis Castaneda Gomez, 34, of Durham. The total penalty was for $16,000.

The citation of four violations, which each came with a $4,000 penalty, was issued following an inspection made by occupational safety and health staff, according to an email from Dolores Quesenberry, a spokeswoman for the labor department.

According to the citation documents, the two men entered an 11-foot-deep-by-8-foot-wide manhole on June 7 to retrieve a piece of equipment needed at another location on a job site, lost consciousness due to a lack of oxygen in the space, and died from asphyxiation.

The company allegedly did not have an entry supervisor present to ensure acceptable conditions were maintained inside the manhole, according to the citation documents.

In addition, the company also allegedly did not ensure atmospheric tests were done to make sure conditions were safe prior to the employees’ entry; allegedly did not ensure appropriate retrieval and rescue equipment was available and used; and allegedly did not make sure appropriate respiratory protection was provided.

The maximum penalty that can be issued for a single serious violation is $7,000, Quesenberry said. In determining the size of the penalties, she said the department must take into account factors such as the size of the business, the “good faith” and cooperation of the employer, and history of previous violations.

“The penalties are in no way designed to make up for loss of life,” she said in an email. “Fines are issued to penalize the offending employer, but also to get the attention of other employers with similar work environments,” she added.

Quesenberry said the company had 15 working days to request a conference with the department, to contest the citation, or pay the penalty.

The company made a notice it was contesting the citation Dec. 20 to the state’s Occupational Safety and Health Review Commission, an independent board that hears citation appeals. As of Monday morning, the hearing had not yet had been scheduled.

The executive vice president for the company, said he couldn’t provide much information about the appeal because it is still pending. The company is contesting the citation because “we just don’t feel that we’re guilty of what we’ve been accused of,” he said.

Both employees were certified for the work that they were doing, he said, and Benitez was a foreman certified to run a crew.

He said they heard from a third party that Benitez was seen by the manhole talking on a cell phone.

He said there’s speculation that Gomez had already entered the hole and “just jumped in without thinking” when he saw what had happened.

“We met every safety standard that could be met,” he said.

The company has felt an impact on business, Bailey said.

“Not only did we lose one of our best crew members, but this has impacted our relationship with cities and towns, and everybody else,” he said.

Story taken from The Herald-Sun - Burlington contractor fights citations issued for worker deaths

Posted 1/13/12