Connecticut Supreme Court again denies claims by victims of Kleen Energy explosion, likely closing decade of litigation over deadly power plant accident

The state Supreme Court may have closed a decade of litigation over responsibility for the Kleen Energy gas plant explosion with a decision that absolves the plant owner and its administrative agent of negligence and liability for the construction accident that killed six and injured 27 more.

It is the second loss at the state’s high court for the workers and families of workers seeking compensation for serious injury and death when an explosion heard for 30 miles destroyed the gas -powered, electric generation plant on the Connecticut River in Middletown in February 2010, just as construction was being completed.

Lawyers following the case said the court’s little-noticed, decision, released late on Dec. 30, probably forecloses whatever hope remains among member of the construction crew for further compensation. A few negligence claims remain in a lower court and could be pressed, but the likelihood of success is slim, they said.

“Although we respect the Supreme Court’s decision, on behalf of our clients, we are deeply disappointed by the result,” said Hartford attorney James Healy, who brought the most recent case with attorney Joel Faxon on behalf of several victims and families. “We will continue reviewing the decision and assessing our next steps going forward. As always, our thoughts remain with the victims and families affected by this tragic explosion.”

Those victims sued Kleen Energy Systems, the local partnership that owns and built the plant, and Power Plant Management Services, Kleen’s administrative agent, for strict liability and negligence associated with a “gas blow” - a late-stage construction process during which natural gas is forced through thousands of feet of piping at extraordinary pressure to clear the lines of construction debris.

Years of post-mortems on the explosion agree that the gas blow was the cause of the explosion that shattered windows and cracked foundations of houses for miles around. There were 2,000 feet of piping to be cleared at the plant and the blow was to be done over two days in stages that corresponded to eight discharge nozzles.

According to the unanimous Supreme Court decision, written by Justice Andrew McDonald, more than three-quarters of the piping had been cleared by February 7, 2010, through nozzles that had been aimed vertically to vent the pressurized gas up, without obstruction, for disbursal in the atmosphere.

During one of the final gas blows late in the morning of February 7, a discharge nozzle was directed horizontally, pumping an enormous quantity of gas into a courtyard substantially enclosed by buildings and power generation equipment, including propane heaters. Four small metal pipes also were also in the path of the welding slag and other debris blown from the nozzle at high velocity with the gas.

Investigators determined that, before the explosion, enough gas had been pumped into the courtyard to fill a basketball arena and power a typical home every day for 25 years

“After the debris was expelled from the discharge nozzle, it struck the small metal pipes located in the courtyard, acquiring heat from the glancing blow,” the court said in its decision. “The heated debris was then carried by the discharge exhaust into the partially enclosed area, where natural gas had been trapped from the prior gas blow. The heated debris ignited the accumulated natural gas and oxygen.”

The Supreme Court rejected the victims’ argument that Kleen and its administrative agent, were “strictly liable” for the gas blow, even if not directly involved, because the process was an unusually dangerous operation carried out by their employee, the general contractor, O&G Industries.

There was evidence before the court that gas blows had been common practice in power plant construction since World War II and were used in 60 to 70 percent of gas power plants built over the last 25 years. There was an effort by one regulatory agency to ban gas blows following the Kleen explosion, but it was overruled.

The victims had sued O&G years earlier, but lost that case at the state Supreme Court. The court concluded that O&G was immune from the suit because it had paid worker’s compensation benefits to the victims under state law that established it as a principal employer.

The court also rejected the victim’s argument that Kleen and its agent were vicariously negligent because they had control over the gas blow. The victims’ made two additional negligence claims that the court declined to consider.

Messages seeking comment were left with representatives of Kleen and O & G.

Victims of the explosion have been compensated in other ways over the last decade. There were mediated settlements, workers comp payments and agreements with subcontractors on the project.

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