Employer in fatal Boston trench collapse did not provide safety training and basic safeguards for employees, OSHA finds

Atlantic Drain Service Co. Inc. cited for 18 violations

In a sharp break from Trump OSHA tradition, OSHA today issued the first enforcement-related press release of this administration, close to $1.5 million for the death of two workers in a trench collapse last October. The last enforcement press release was issued January 18.

And despite industry associations’ constant attempts to shame Obama’s OSHA for shaming employers who endanger workers, OSHA was apparently shamed into issuing this press release that contains a rather shameless quote from Region I Regional Administrator Galen Blanton that appears to be an attempt to shame Atlantic Drain Service Co:

“The deaths of these two men could have and should have been prevented. Their employer, which previously had been cited by OSHA for the same hazardous conditions, knew what safeguards were needed to protect its employees but chose to ignore that responsibility,” said Galen Blanton, OSHA’s New England regional administrator.

And the shaming of Atlantic Drain Service Co. — and its owner, Kevin Otto — is richly deserved.

Background

Kelvin Mattocks and Robert Higgins were killed when they were trapped in an unprotected 12 foot deep trench that collapsed on top of them last October. Then a hydrant flooded the hole and drowned them as they fought to escape the gravel.  Mattocks was 53 and the father of six daughters. Higgins was 47. In February, Boston prosecutors indicted Kevin Otto, Atlantic’s owner, as well as the company, for two counts each of manslaughter, as well as misleading an investigator, and six counts of concealing a record. According to Assistant District Attorney Lynn Feigenbaum, Atlantic knew about the hazards because OSHA had previously :

Levied $55,000 in fines against the company in 2007 and 2012 for putting workers in deep trenches without the equipment. After the second violation, Atlantic Drain agreed to provide comprehensive training programs to ensure their employees understood the hazards to which they were exposed, Feigenbaum said.

When the Suffolk district attorney’s office and OSHA began investigating the Oct. 21 collapse, Otto submitted falsified documents to OSHA that purported to be sign-in sheets for excavating and trenching trainings and documents regarding the receipt by workers of personal protective equipment, Feigenbaum said. But several of the people whose names appeared on the documents, she said, told officials they never signed them or gave anyone else permission to. Those false documents, Feigenbaum said, were meant to mislead the investigation.

Otto pleaded not guilty to all charges.

In 2012 OSHA issued a an almost $74,000 citation against Atlantic for a willful and four repeat violations for exposing worker to a cave-in in an unprotected 9 foot deep trench. Atlantic was also put in OSHA’s Severe Violator program. In 2007, Atlantic received several citations, including a willful for trench-related violations.

The current OSHA citations include “a total of 18 willful, repeat, serious and other-than-serious violations of workplace safety standards and is proposing $1,475,813 in penalties for those violations.”

“The deaths of these two men could have and should have been prevented. Their employer, which previously had been cited by OSHA for the same hazardous conditions, knew what safeguards were needed to protect its employees but chose to ignore that responsibility” — Galen Blanton, OSHA New England regional administrator

The press release notes that ” OSHA and the department’s Regional Office of the Solicitor worked with the department’s Office of the Inspector General, the Boston Police Department’s Homicide Unit and the Suffolk County District Attorney’s Office during the course of this investigation.”

A Confined Space post last month called on OSHA to start putting out press releases on trench collapses and other large cases. They serve the purpose of warning similar companies that OSHA will not tolerate violations of the law that endanger workers, and they serve an educational purpose — point out how to protect workers and what the law says.   One hopes that more large fines like this, more criminal prosecutions — and more press releases will send a clear message to employers who rely on luck as their health and safety program.

In response to the fatalities, in December, the Boston City Council passed an ordinance giving city officials the authority to deny, revoke, or suspend a permit for any contractor with a poor record of ensuring their workers’ safety.

The Massachusetts Coalition for Occupational Safety and Health (MASSCOSH) and several labor unions demonstrated outside the courthouse when the company was indicted,  and pointed out the weak penalties in Massachusetts for criminal convictions:

It’s been 200 years since Massachusetts raised the maximum penalty a corporate entity can incur if convicted of manslaughter. Atlantic Drain Services may only be liable for $1,000 if it is convicted. Demonstrators ridiculed the insufficient fine and called for to be dramatically raised to reflect the true suffering family and co-workers go through when a worker is killed on the job due to negligence.

Going forward, MassCOSH has pledged to support legislation filed by Senator Jennifer Flanagan that would increase penalties for employers convicted of manslaughter and similar crimes from $1,000 to $250,000, as well as increase provisions to debar employers for operating for up to 10 years.

More Information on Safe Trenching

OSHA requires any trench over 5 feet deep to be protected from collapse. For workers or employers who need more information on trench safety, consult OSHA’s   Trenching and Excavation web page that links to its standards, publications, fact sheets, posters — in English and Spanish —  and anything else a worker or  employer  could want. And don’t forget the OSHA-funded Onsite Consultation Program  where any small employer can get a free consultation and assistance without fear of an OSHA inspection.