Handing down the most severe rebuke they can, state regulators Thursday slammed BART for serious and willful safety violations related to the deaths of two workers hit by a train in October in Walnut Creek and fined the transit agency $210,000.

The state's top safety agency, Cal-OSHA, determined that the victims, Christopher Sheppard, 58, of Hayward, and Laurence Daniels, 66, of Fair Oaks, were not qualified to perform work near energized third rails. One was carrying an aluminum level, highly conductive to third-rail electricity and a safety violation.

Investigators also found that the high-ranking transportation manager training another employee to drive the train that struck the two men was seated in a passenger car where he could not view the track ahead, as required.

The third violation involved the controversial "simple approval" protocol, which put the onus for trackside workers' safety on those individuals. State regulators said that protocol was "inadequate" to prevent accidents like this and "not followed."

BART has 15 working days to appeal but has not indicated how it will proceed, although it did say Thursday that many new safety measures are now in place.

Sheppard and Daniels were inspecting a dip in the tracks between the Walnut Creek and Pleasant Hill/Contra Costa Centre stations on Oct. 19, during a BART strike when trains were running only for maintenance and training purposes. An autopsy report confirmed both men were facing away from the train when it hit them at about 70 mph, violating regulations requiring one of them to stand away from the track and watch for oncoming trains. While Sheppard and Daniels were experienced track engineers, Cal-OSHA said BART "failed to ensure that only qualified electrical workers were allowed to perform work" near energized third rails.


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The day after their deaths, BART officials eliminated the "simple approval" protocol. Union representatives blasted the transit agency for training operators in an unsafe manner and placing workers at risk.

Cal-OSHA had pushed for abandonment of BART's "simple approval" protocol since previous worker fatalities in 2001 and 2008, and BART is still appealing a fine levied after the 2008 death of a BART worker hit by a train in Concord. The transit agency is scheduled to appear in Alameda County Superior Court on June 23 to continue that appeal.

"BART made inadequate amendments to 'simple approval' following the 2001 and 2008 incidents," Cal-OSHA spokesman Greg Siggins said Thursday, who insisted that protocol went against state law.

Chris Finn, the new president of Amalgamated Transit Union Local 1555, which represents BART train operators, said he hopes Thursday's actions give the families of the deceased some closure. He and AFSCME Local 3993 President Patricia Schuchardt, who represents train controllers and other BART employees, blame BART management for having supervisors operate trains.

"It was their arrogant belief during the strike last October that they could run the system without the people who possess the skills and experience to run BART safely, and two men are dead because of that," Schuchardt said.

BART has since made additional changes to address the problems noted in the citations.

"BART has fundamentally upgraded its safety procedures with the implementation of an enhanced wayside safety program and a proposed budget investment of over $5 million in additional resources to bolster BART's safety performance," BART General Manager Grace Crunican said in a statement Thursday.

That money will be spent on additional positions in BART's maintenance and engineering, transportation and safety departments, track maintenance, train control systems, enhanced monitoring and a safety incentive program for front-line workers, the general manager said.

Crunican said her agency has also implemented safety regulations by the California Public Utilities Commission designed for rail transit agencies and will add further trackside protections for workers, adding that the BART family has spent the past six months mourning the loss of Sheppard and Daniels.

In March, BART announced that its on-time performance slipped by two percentage points, from 94.4 percent to 92.1 percent, since state regulators modified safety rules. And things may get even slower, as next month BART will add new policy changes to include better communication between the control center, train operators and work crews on the track; more safety measures and reduced train speeds near wayside workers; and a mandatory watch person during nonoperating hours when maintenance vehicles are on the tracks, Crunican said.

BART is still awaiting a final report and recommendations from the National Transportation Safety Board, which could lead to further changes.

"These safety enhancements may mean more delays for our riders, and we ask for their patience and understanding," Crunican said. "A safer system for our employees will provide for a safer system for our riders and a better BART."

Thursday's fine is the largest levied by Cal-OSHA since January 2013, when regulators docked Chevron almost $1 million for the Aug. 6, 2012, fire at its Richmond refinery.

Contact Matthias Gafni at 925-952-5026. Follow him at Twitter.com/mgafni.