The Sound Transit contractor Obayashi may not have to pay the state any fines stemming from a fatal accident in the Beacon Hill tunnel two years ago.
Michael Merryman, 49, died after he was thrown or jumped from a moving locomotive in the tunnel in February of 2007. The locomotive crashed into a parked train after descending a steep grade at the tunnel's western exit.
After a five-month investigation that included a month-long closure of the tunnel, the state Department of Labor & Industries fined Obayashi $29,000 for safety violations. L&I said Merryman's primary cause of death was that the person who was running the locomotive was not trained. There were other contributing factors including wet and muddy train tracks, and a load of concrete tunnel segments that was not tied down.
Obayashi appealed L&I's decision to the state Board of Industrial Insurance Appeals. In December, that board ruled in favor of Obayashi and tossed out the $29,000 fine. Judge David Crossland of the appeals board said in his ruling that the state can't blame Obayashi for Merryman's death.
Obayashi "was duped," Crossland wrote, because the train operator said he was experienced when he wasn't.
The operator, however, disagrees.
Reached at home in Oregon, David Christophersen, 57, said, "I never told anybody anywhere that I was experienced as a loci [the field term for locomotive] operator." He also says that Obayashi recruited him from the Portland local of the International Union of Operating Engineers at the request of an Obayashi foreman.
L&I is appealing the appeals board ruling, which is somewhat unusual. "Most cases are settled before they get to this point," L&I spokesperson Elaine Fischer says. The board could issue a final decision within a few weeks.
Crossland's decision sheds the clearest light yet on what really happened in the Beacon Hill tunnel in the early hours of Feb. 7, 2007. The text of that decision, other court documents and interviews by this reporter of the loci driver and other construction staff describe the following series of events: According to the board of appeals' decision, the train operator drove the train east into the tunnel from its western entrance with a load of grout, concrete tunnel segments and rails.
Christophersen had been on the job for several weeks.
But when he got to his destination -- the tunnel boring machine -- the foreman told him his load was out of order, according to the court documents.
"They loaded the thing backwards so they had the pieces on top they needed last. That's why they sent the train back outside the tunnel," says Eric Bellamy, a field representative for Local 302 of the International Union of Operating Engineers.
It was not Christophersen's job to load the train, only to drive it. The foreman told him to drive the load back out of the tunnel and have it reloaded correctly. There wasn't room inside the tunnel to reload it.
"He got pretty well exercised and sent me back out of the tunnel with a full load," Christophersen says.
Robert Taaffe, construction safety manager for Sound Transit, says that it was very unusual to take a full load out of the tunnel. "It's extremely rare. You're always taking material in to install and never taking material out."
Michael Merryman hitched a ride on the train going out. He was a shop mechanic who had been on the job about three weeks and had gone into the tunnel to get a broken fitting that needed to be replaced, Bellamy says. "He had never been in the tunnel until that day," Bellamy says.
Christophersen says Merryman stood right next to him. Steep grade, heavy load Christophersen's load coming out of the tunnel was incredibly heavy. The seven concrete tunnel segments he was hauling weighed about three tons apiece. The locomotive itself weighed 30 tons.
There was a steep grade coming out of the tunnel, a 50-foot drop over a 1,000-foot distance.
Crossland wrote: "The only means of slowing and ultimately stopping that much weight going downhill was to proceed slowly out of the tunnel and apply the brakes in a manner so as not to lock them up into a skid on the rails. Once the momentum was in process, the train would not be easily stopped."
The evidence seems to indicate that Christophersen did not do that. He told people he was in third gear coming out of the tunnel, according to the testimony of Obayashi's safety manager Al Donaldson. Christophersen said in his testimony that his usual routine was to begin his trip in second gear and end up in third gear.
At the time, the speed limit in the tunnel was 10 miles per hour, according to Sound Transit. It was reduced to four miles per hour after the accident.
"We weren't supposed to go over 11 miles an hour. But even in third gear you can control it under normal conditions," Christophersen says.
But these weren't normal conditions.
"It was overloaded and there was so much slop on the tracks that once I broke over the hill it was like sliding on ice. We had absolutely no control over the vehicle whatsoever," he says. The locomotive crashed into a parked train that was being repaired at the west portal. Was training to blame? Even after a five-month investigation, the state has never clarified whether Merryman jumped or was thrown off the train.
"He did not jump," Christophersen says. "When we hit the stationary engine he was thrown off the loci. He was ejected from the machine." That is consistent with the report of the medical examiner, who conducted an autopsy. According to the death certificate, Merryman died of blunt force injuries incurred when he "fell from moving train at construction site, hit fixed object."
Merryman's family was not eligible to receive any insurance because he was not yet a full-fledged union member, Bellamy says.
This was not the first runaway train on that section of railway in the Beacon Hill tunnel. Four months earlier, in October 2006, a train had crashed through a rail stop, gone through a guardrail and over a wall, and fallen 30 feet to the access road below, according to a Sound Transit safety report. Three workers had been injured when they jumped off the train.
An Obayashi supervisor, Ken Burton, was the driver of that train. Sound Transit spokesperson Bruce Gray says that Burton "did not have the training on this specific site to be an operator in that October accident."
After the 2006 accident, the locomotive manufacturer, Brookville, came out and consulted with participants on the project about ways to make improvements. Obayashi field safety manager Billy Hahn testified that one train operator, Terry Martin, was "specifically trained to certify each operator's training, experience and knowledge for the safe operation of a [locomotive] with cars attached."
Martin had been transferred to crane operator by the time Christophersen came to work at the Beacon Hill tunnel, so another locomotive operator trained him instead. The court documents said while Angela Boutelle was an experienced operating engineer, she had never trained anyone before. "She had been trained by Mr. Martin, so she became the logical choice to train Mr. Christophersen," the documents said.
Christophersen testified that he had not operated a locomotive before he came to work at the Beacon Hill tunnel.
"It was OJT [on the job training] for me. I am an operator by trade. I had never operated a loci," Christophersen says.
Boutelle said that she trained Christophersen for a week and he had two days of additional training with Martin.
But Christophersen says he had just three days of training from Boutelle and none from Terry Martin. "I rode with him one time and he wouldn't even let me run the machine," Christophersen says.
Christophersen testified that he was not trained in what to do in an emergency situation.
In his appeal of the board's ruling for the Department of Labor & Industries, Assistant Attorney General Brian Dew wrote, "It might be only coincidence that the one locomotive operator who was not trained in accordance with Obayashi's training policy following the previous runaway locomotive incident was the one involved in the second out-of-control locomotive incident, but the evidence shows that Mr. Christophersen's alleged training was ineffective."