An average of 13 workers die every day on the job. Every day news articles are written, investigations are conducted, and citations are issued. And then it starts all over the next day.
These are not “accidents” or random occurrences. They are generally caused by unsafe working conditions in clear violation of OSHA safety and health standards or other recognized safe work practices.
All of these make me mad, but none more angry than those workers who lose their lives due to trench collapses. And its not just coincidence that I happen to see a lot of these: Between 2011 and 2015, according to the Bureau of Labor Statistics, 94 American workers were killed in trench collapses. In 2016, 23 U.S. workers died and 12 were injured in collapses.
Nothing sharpens the mind of an employer who may be tempted to cut corners on safety than the prospect of spending the next several years in jail.
Just a few recent examples:
Fatal South Huntingdon trench collapse labeled accident by police
South Huntingdon, PA — Adam Sokut “died when the walls of a 10-foot-deep trench collapsed on him as he and his father worked to install a septic system at a property outside Smithton owned by Adam Skokut Sr.” Skokut was only 18 years old
Middleton man dies after construction trench collapses on him
Middleton, Idaho — “Harold Foote, 58, was working to put in a drain pipe on Franklin Road near Joplin Road when dirt collapsed on him, burying him up to his mid-chest….Bystanders and emergency workers dug him out, but he reportedly suffered cardiac arrest and was taken to a local hospital, where he was declared dead….Star Fire District Capt. Ryan Hood said Sunday the man was unresponsive when first responders pulled him from the 8-foot trench.”
A man died Tuesday after he was trapped in dirt up to his waist while working at a home construction site in Northwest Washington, authorities said. …The man was identified by D.C. police as 52-year-old Valnei Antonio Ornellas Nascimento of Silver Spring.
City Worker Killed In Sauganash Trench Collapse
SAUGANASH, IL — A city water department worker died Monday afternoon after an underground trench collapsed around him during a routine project, officials said….The man, identified as 41-year-old Konrad Tucharski, had been working on a “planned construction project” to replace a sewer pipe, according to Gary Litherland, a spokesman for the water department.
Now, what can be learned from these tragedies?
- All were apparently in violation of OSHA’s Excavation and Trenching standards that require trenches over 5 feet deep to be protected through shoring or sloping.
- In a couple of these cases, the victims were only half buried, but they died anyway. Why is that? A cubic yard of soil weighs up to 3000 pounds, the weight of a mid-sized automobile. A trench collapse may contain three to five cubic yards of soil. Do the math. Even if you’re only buried up to your waist, successful rescue is unlikely; you’re probably going to die. Even if your head is out of the soil, every time you exhale, the soil will press down on your chest, making it impossible to take another breath.
- You are unlikely to be able to rescue someone from a trench collapse. The soil is heavy, and the trench will continue to collapse, endangering anyone who jumps in attempting to dig out a co-worker. That’s why trench “rescues” quickly become body “recovery,” which typically takes hours. The lesson: Only prevention will save lives.
But there is a much bigger issue here — one that is raised in frequent discussions about the role of OSHA as an enforcement agency. OSHA under the Obama administration was frequently and falsely accused of all but eliminating cooperation with employers and compliance assistance, in favor of all-out enforcement. Nothing could be further from the truth: OSHA provided almost $58 million each year for states to run a small business consultation program, and another almost $80 million for federal compliance assistance and training grants.
Nevertheless, what we often hear from Republicans (and some Democrats) in Congress, and the new administration, is that all employers (with a few exceptions) want to do the right thing and all they need is more information and friendly assistance. Well, a lot, probably most, employers want to do the right thing — and for those, OSHA, various associations, and for-profit consultants have all the information and help any employer could ever want or need. But there is only one entity — OSHA — that can act as the cop on the beat for those employers who know what needs to be done to keep their worker safe, but don’t do it.
Trenching deaths are a good — if tragic — example. Because the hazards of trenches, and how to protect workers who go into deep trenches is well known. In fact, I will go out on a limb and say that there is no construction company, large or small, that doesn’t recognize the dangers of trenches and how to protect workers. And this isn’t exactly a new hazard: OSHA has had standards for decades, and even before OSHA — like somewhere about 2300 years before OSHA — Heroditus wrote about how the Phoenicians had figured out how to prevent trench collapses that were plaguing their army.
And it’s not like there isn’t a lot of information out there. OSHA has a Trenching and Excavation web page that links to its standards, publications, fact sheets, posters — in English and Spanish — and anything else an employer or worker could want. And don’t forget the OSHA-funded Onsite Consultation Program that I mentioned above where any small employer can get a free consultation and assistance without fear of an OSHA inspection. And while I’m not vouching for the accuracy of everything, but a simple Google search on “Trench Safety” comes up with a short 30 million hits in less than a second.
In other words, there is no excuse — none — for killing a worker in a trench. And yet somehow, the deaths keep on coming. If you read the Idaho Statesman article above about the death of Harold Foote all the way to the end, for example, you would have learned that “Last May, two people died and a third was injured after a 9-foot-deep trench collapsed near the Boise corner of North Hill Road Parkway and Gary Lane.” That trench was 9 feet deep.
So why do they keep happening? Saving a little money? Saving a little time? Just hoping your luck holds out one more time?
So, what is to be done?
OSHA has the ability to issue citations an penalties. For a variety of legal reasons, the penalties are often not very much. The double fatality mentioned above resulted in a $4988 fine for the company. If the circumstances are right, OSHA also has the ability to issue higher fines. For example, last November OSHA proposed penalties totaling $274,359 against an Ohio company after a 33-year-old employee was crushed to death in June 2016 as he was digging soil out of the 12-foot trench.
And, of course, strong press releases would also help. OSHA hasn’t issued an enforcement-related press release since January 18. Strong press releases not only send a message to the cited employer, but also to employers — and workers — in the same geographic area and throughout the industry. Check out this press release as an example of how a strong press release can send a clear enforcement — and educational — message to the country.
But clearly citations and fines — especially $5000 fines — aren’t doing the job. So what else can be done?
Higher fines: Congress passed legislation last year requiring OSHA to increase its penalties and then index them to inflation. Prior to that legislation, OSHA penalties had not been raised since 1990. The maximum for a serious violation was only $7,000 and the maximum for a willful violation was $70,000. Today those have been raised to $12,675 and $126,749 respectively. Better, but still not enough to sufficiently deter most employers, especially since a willful citation is always difficult to achieve. But given that no employer can truthfully argue that they didn’t know about trench collapses, if I was King of the World, I would make every workplace trench fatality an automatic willful. And, while I’m at it, significantly raise the penalty for a willful violation.
Atlantic Drain Services “gambled with their employees lives and safety.”
Criminal Prosecutions: It is unlikely that we will see automatic willful citations or or significant penalty increases in this administration. So the other, much more effective option is more criminal prosecutions. OSHA, under the Obama Administration, worked closely with the Justice Department to pursue criminal prosecutions in workplace fatality cases, but there are several problems. First, the Occupational Safety and Health Act’s criminal language is extremely weak. A criminal prosecution is only possible after a death accompanied by a willful citation, and even then, it’s only a misdemeanor. In addition, it’s probably unlikely that the Sessions Justice Department of the Acosta Labor Department are going to aggressively pursue criminal prosecutions. (Although I’d love to be proven wrong.)
The other option is for state or local jurisdictions to pursue criminal prosecutions. And happily, we just had a good example of that:
Company Owner Charged With Manslaughter After Deadly South End Trench Collapse
The owner of Atlantic Drain Services is being charged with manslaughter and misleading the investigation into to the death of two employees who were trapped in a flooded trench following a South End water main break.
Suffolk District Attorney Dan Conley announced Wednesday that Kevin Otto and Atlantic Drain Services have each been charged with two counts of manslaughter, one count of misleading an investigator, and six counts of concealing a record following the deadly October incident on Dartmouth Street.
Conley said federal requirements mandate that trenches deeper than five feet must be shored up using metal or wood. The Dartmouth Street trench was 14 feet deep but not secured.
Robert Higgins and Kelvin Mattocks died when they became trapped beneath the water in the trench following a water main break.
Otto and Atlantic Drain Services had two prior Occupational Safety and Health Administration violations in the past 10 years, and as a result were required to undergo training.
Prosecutors allege that the company doctored paperwork to appear that employees had attended training when they had not. Conley said Atlantic Drain Services “gambled with their employees lives and safety.”
“That isn’t an accident. That isn’t negligence. That’s wanton and reckless conduct, and we believe it cost two men their lives,” Conley said.
Frequent pursuit of criminal penalties may be enough to turn the tide on clearly preventable workplace fatalities. After all, nothing sharpens the mind of an employer who may be tempted to cut corners on safety than the prospect of spending the next several years in jail.
But prosecutors deciding to pursue criminal penalties does not generally happen by itself. It requires workers, unions and community groups to educate local prosecutors and encourage them to go after such cases. Workers lives depend on it.