Preventing Deaths in the Season of the Trench

Sometimes it’s hard to remember with all the bad news around OSHA’s authority to protect workers from COVID-19, that there are still lots of workers dying from other causes — lots of them — and there would be a lot more if it wasn’t for strong OSHA standards and the heroic work of OSHA inspectors who venture into hostile environments every day to save workers’ lives.

And with that, welcome to the season of the trench.

Earlier this week, 33-year-old Matthew Miller was crushed to death under 20 feet of soil in Jackson, Mississippi.  On December 30, 47-year-old Jeremiah Brown was killed in the collapse of a 10-foot deep trench in Grain Valley, Missouri. 20 year-old Marlon Diaz was killed in a trench collapse on November 16 near Breckenridge, Colorado. (A steel trench box — which should have been used to support the trench walls — was sitting nearby the site, unused.) Robert Fallone Jr., 56, of Chili, NY was crushed to death November 7 in a 15-foot trench on when the walls of the trench collapsed on him. 55-year-old Bobby Green was killed in a 20-foot deep trench collapse in Huntsville, Alabama on September 2.  87 year-old Robert Rey Castillo, owner of Castillo Excavating Inc. was buried in an approximately 9-foot deep trench on September 20 in Longmont, Colorado. 48 year old construction worker Dave Chmielewski died after a trench Collapsed in Lindstrom, MN on September 28. Six workers died in trench collapses and four workers were rescued after being partially buried by cave-ins this past spring around the country.

Those of you who have read various iterations of this newsletter know that there are a few things that really tick me off: the main one being workers who are killed in trench collapses.  They are deadly, easy to prevent, and too common.

Bobby Green’s death adds insult to injury and raises another problem that never ceases to enrage me.  OSHA will not investigate Green’s deaths and Green’s employer, the City of Huntsville, will receive no OSHA citation. Why? Because Green was a public employee, and Alabama public employees, like those in 23 other states, are not covered by OSHA and have no legal right to a safe workplace.   Instead of an OSHA investigation, the City of Huntsville will conduct its own investigation and has hired an outside consultant to investigate the death.  (And call me a cynic, but more often than not, when cities investigate themselves, the cause is usually “worker error.”  (Feel free to prove me wrong Huntsville.)

When I worked for AFSCME in the 1990s,  I taught a workshop on trench safety for public employees in New England. I asked them to raise their hands if they had ever received any training. About half raised their hands. I asked one to describe his training.

“Sure, they train us,” one of the local presidents replied, “They train us how to dig someone out when the trench collapses on them.”

The problem is you generally can’t dig someone out of a deep collapsed trench.   One cubic meter of soil weights around 3,000 pound — the size of a small automobile. When an automobile falls on you chest, you are unlikely to survive.  Even the attempt to dig someone out if fraught with peril: collapses trenches can continue to collapse, endangering the rescuers. Machinery can’t really be used because it further endangers the victim. In 2003, a worker buried in a trench collapse was decapitated when workers tried to rescue him with a tractor. Furthermore, workers rarely survive collapses of deep trenches.  That’s why trench rescues quickly become body recoveries that can take many hours to be completed safely.

Bobby Green’s employer, the City of Huntsville, will receive no OSHA citation because Green was a public employee, and Alabama public employees, like those in 23 other states, are not covered by OSHA and have no legal right to a safe workplace.

Even workers who are partially buried often do not survive, either because their chest is so compressed, they can’t breathe, or because of “compression syndrome,” a medical condition that results in a major shock to the organs and kidney failure. For example, last January, 59-year-old Jay Saxe Froshaug died after just being buried up to his waist in a 10-foot deep trench in Greeley, Colorado. And in

The Real Threat

We know a fair amount about workers who are killed in trench collapses because they make news.  We don’t know a lot about those lucky enough to escape trench collapses because they generally aren’t covered in the press.  (One exception was a successful rescue after a 10-foot deep trench collapsed on December 16 in the Bronx.) And we know next to nothing about how many workers are at risk of trench deaths every day. OSHA takes trenching seriously and has conducted various local and national emphasis programs over the years to focus on preventing these deaths. But OSHA is a small agency, and it is impossible to monitor every small construction job being conducted in every neighborhood in the country.  Over the last several years, I have encountered several illegal hazardous trenches just within a few blocks of my home. Luckily for the workers in those situations, I was in the right place at the right time,  I can identify an unsafe job and I have Maryland OSHA speed dial and Twitter. But how many such deadly operations are occurring, undetected, across this county, this state – or this nation – at any given time?

Trenching Fatalities Are Not Accidents

At least 21 workers died in trench collapses in 2020, and OSHA reports that 24 died in 2019, significantly more than the 17 killed in 2018.  Trench collapses are not “accidents.” They are not new hazards.  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.

Prevention measures are not difficult or costly. Information about the deadly results of trench collapses and how to dig a trench safety are easy to find. A Google search of “trench safety” turns up 27 million hits in less than a second – a list led by the OSHA regulations.

And as deadly as trench collapses are, they are easy to prevent.  OSHA, for those who don’t know, requires trenches more than 5 feet deep to be protected from cave ins.  That means if you see someone in a trench over their shoulders, it’s likely too deep. As OSHA explains, to prevent cave-ins: “SLOPE or bench trench walls, SHORE trench walls with supports, or SHIELD trench walls with trench boxes.”  OSHA has a protective standard, detailed guidance and simple fact sheets. Some state plans have standards even more protective than OSHA’s.

Oh, and in case you’re a small employer that gets overwhelmed by all those complicated government regulations, OSHA’s funds a onsite Consultation Program in every state that provides free onsite health and safety help to small and medium size employers.

Unfortunately, in an effort to save time or money, too many employers cut corners and kill their employees.

How To Stop Employers From Killing Workers in Trenches?

I doubt there is any sewer or plumbing contractor in the country that is not aware of the dangers of trenches and how to protect workers.  So, if we know how to prevent trench collapses and workers in this country have a legal right to a safe workplace (except if you’re a public employee), why are so many workers continuing to die in unprotected trenches?

We do not have a knowledge problem. These are not freak accidents.  What we have is a failure to take those risks seriously. And a failure to enforce violations strenuously enough to deter employers’ deadly misbehavior.

Considering that OSHA is handicapped by low maximum penalties, weak criminal provisions in the law, and the inability to oversee small worksites, the agency is doing the best it can with what it has and has issued some fairly substantial financial penalties related to trenching violations and fatalities. OSHA also has a National Emphasis Program focusing on trench collapses.

In Oct, federal OSHA issued $208,543 in proposed penalties against Dunaway Excavating for the death of 50-year-old Luis M. Cortes-Correa in a 16 foot deep trench. Not a bad penalty for OSHA, but most federal violations are less than $100,000.

And unfortunately, most large OSHA citations come too late: after a worker has been killed, although the agency does issue fairly substantial violations before a worker is killed. Last November, OSHA issued a $75,000 citation against Reyes Landscaping when employees were found to be working in a 5 to 8 foot deep trench without cave-in protection.

The state plans are often much worse. Although the North Carolina Department of Labor fined a construction company for a 16-foot deep trench collapse that killed 38-year-old Shane Anthony Sharpe last May, Utah fined a company only $2,000 for a trenching death of Carlos Eduardo González last June.

Ultimately, OSHA penalties — even those that stretch into triple digits — are apparently taken seriously enough to stop the killing. Many of these penalties are just the cost of doing business.

Ultimately, OSHA penalties — even those that stretch into triple digits — are clearly not taken seriously enough to stop the killing. Many of these penalties are just the cost of doing business. For example, barely two years after Arrow Plumbing LLC in Oak Grove, MO, agreed to adopt a comprehensive trench safety program following the December 2016 death of 33-year-old Donald Meyer in an unprotected trench, OSHA inspectors responded to a complaint in August 2020 and found another of the company’s employees working at least 7-feet below ground in an unprotected trench in Belton Missouri. A second investigation began on Jan. 20, 2017, at a Kansas City work site where inspectors found the contractor’s employees working in an unprotected trench at another residential work site. No employees were injured there. Fines for both cases totaled $714,142. but were reduced to $225,000 when the company agreed to hire a safety consultant to design and implement a trench safety program, and ensure employees complete OSHA construction, and trenching and excavation training courses.

Nothing Sharpens the Mind Like the Prospect of Prison Time

So what is to be done? There are far still far too many employees whose trenching safety programs are based on one single element: luck. And usually, their luck holds out. But that’s not the way the law works in this country in almost any other area than workplace safety. The law is very clear: employers are required to maintain a safe workplace. When you violate a law an put workers in a situation that could result in death, there should be severe penalties. When that negligence results in a clearly preventable death, there should be jail time – the only deterrent that will convince employers to take the law seriously.

Unfortunately, the federal Occupational Safety and Health Act only allows criminal prosecution under the law if there is a fatality and a willful violation of an OSHA standard who knowingly violates any standard. Even then, the penalty is only a misdemeanor, which means the Department of Justice is generally reluctant to invest the resources to pursue these cases.

According to data compiled by the AFL-CIO, since the passage of the act in 1970 over 50 years ago, only 110 cases have been prosecuted under the act, with defendants serving a total of 112 months in jail. By comparison, the Environmental Protection Agency reported in FY 2020 that there were 247 criminal enforcement cases initiated under federal environmental laws and 184 defendants charged. This included 146 criminal cases after March 2020, more cases, fines and jail time in less than one year than during OSHA’s entire history.

During the Obama administration, the Department of Labor stepped up criminal enforcement efforts, and OSHA and the Department of Justice agreed to work much more closely to coordinate their efforts on cases involving potential criminal prosecution for worker safety.  And even before that, the Justice Department had established a Worker Endangerment Initiative.

State Prosecutions have been more common

State prosecutors have done better in rare cases, often working together with OSHA.  In 2019, Atlantic Drain Service and owner Kevin Otto were convicted on two counts of manslaughter in connection with the collapse of a 14-foot deep trench that killed two workers, Robert Higgins and Kelvin Mattocks, in Boston in 2016. Last year a Colorado state court has sentenced the owner of an Avon construction company to jail and ordered restitution for the family of a 50-year-old company worker who suffered fatal injuries in a preventable trench collapse at a Granby work site in June 2018. The Grand County Court of the State of Colorado sentenced Bryan Johnson, owner of ContractOne Inc., to 10 months in jail for two counts of reckless endangerment and one count of third degree assault related to the 2018 death of Rosario Martinez.  Johnson pleaded guilty to the charges on June 16, 2021.

And in a celebrated 2016 case in New York City, Wilmer Cueva was sentenced to 1-to-3 years in state prison for causing the death of 22-year-old worker Carlos Moncayo in a trench collapse. Cueva was convicted by a New York State Supreme Court jury of Criminally Negligent Homicide and Reckless Endangerment. In the state of Washington, 5 people were charged with manslaughter for their alleged involvement in the death of 24-year-old Jonathan F. Stringer on Jan. 9, 2020 when a 12 foot deep trench collapsed during construction of the Skookumchuck Wind Farm in Washington. (Three of the five codefendants have filed motions asking Lewis County Superior Court to dismiss all charges against them.)

One case going on right now is in the state of Washington. On Jan. 26, 2016, Harold Felton was crushed to death when soil caved into a 7- foot deep trench he was working in at a West Seattle home.  Washington state OSHA regulations require trenches over 4-feet deep to be shored (the federal OSHA requirement is 5 feet.) The Labor and Industries (L&I) Department investigation found shoring had been installed on only one side of the trench that collapsed, instead of on all four sides. There was also no ladder for entry or exit from the trench. L&I, which houses Washington OSHA cited Alki Construction in September 2016 and fined the company $51,500. Company owner Phillip Numrich appealed the fines and OSHA agreed to reduce the penalty to $25,750 to avoid costly litigation.

Successful criminal cases involving trench collapses are the rare exceptions, not the rule. Imagine if the exception became the rule.  Imagine the situation if employers could count on significant prison time every time a worker is killed in a trench collapse.

Two years later, Seattle prosecutors charged Numrich with second-degree manslaughter and violation of labor safety regulation for alleged negligence that caused the death of Felton. It was the first time a Washington employer has faced felony manslaughter charges for a workplace death. According to L&I Director Joel Sacks, “There are times when a monetary penalty isn’t enough.”

Unfortunately, the prosecutor’s office is now backing down. The State will dismiss the manslaughter charges in exchange for Numrich’s company pleading guilty to the OSHA violations and Numrich personally pleading guilty to the crime of Attempted Reckless Endangerment, a simple misdemeanor.  The State would then recommend that Alki Construction pay a fine of $100,000 and that Mr. Numrich go to jail for 30 days and then be on probation for two years. Thirty days in jail is better than no days in jail, but workplace safety advocates in Washington are understandably disappointed with this retreat.

But successful criminal cases involving trench collapses are the rare exceptions, not the rule. Imagine if the exception became the rule.  Imagine the situation if employers could count on significant prison time every time a worker is killed in a trench collapse and a major penalty every time as worker was put in a dangerous trench — even if they survive.

The Occupational Safety and Health Act Needs to be Changed

The Protecting America’s Workers Act, which is pending in the House of Representatives and Senate, would increase OSHA criminal penalties from a misdemeanor to a felony (and up to 10 years in jail) for any employer who knowingly “knowingly violates any standard, rule, or order promulgated under [under the OSHAct] and that violation caused or significantly contributed to the death of any employee.”  The bill would also allow criminal charges (and up to 5 years in prison) where an employer’s action “significantly contributed to serious bodily harm to any employee but does not cause death to any employee.”    The House Education and Labor Committee last held a hearing on OSHA penalties and criminal prosecutions on Workers Memorial Day in 2009.

What Else Needs to Be Done?

I compiled a similar Trench Collapse To-Do list in 2018. It remains relevant today:

• OSHA should announce to the enforcement staff and the world (after clearing with DOL attorneys) that the burden is on the Regional Offices for trench fatalities investigations that are NOT willful violations. Personally, I think every single trenching fatality should result in a willful violation. There hazard is well known. There is no excuse. Legally, OSHA can’t quite do that, but they can force field personnel to justify any trench fatality case that is NOT willful. OSHA should pressure state plan states to do the same.
• OSHA needs to continue to issue strong, hard-hitting press releases every time an employer is cited for a trench violation.
• Every willful trench case should be referred to the DOJ for criminal prosecution, and OSHA should work closely with DOJ, as well as local authorities to ensure that the employer is criminally prosecuted either at the Federal, state or local level. Congress should pass legislation strengthening OSHA’s ability to criminally prosecute employers whose willful violation of the law results in the death or serious injury or a worker.
• States and municipalities should pass laws requiring anyone doing trenching must apply for a permit.  They should then require that the information could be shared with OSHA to create a target list for inspectors.
• OSHA should work with the American Public Works Association, the American Society of Civil Engineers, the Association of Construction Inspectors and every other organizations that represent construction inspectors, civil engineers or municipal governments to ensure that every public official or person with contract oversight responsibilities learns to recognize an unsafe trench and is educated and empowered to call OSHA.
• OSHA puts out some great information about preventing trench collapses: trenches must have cave-in protection, never enter a trench that hasn’t been properly inspected, etc. — but there needs to be a more hard-hitting message: Instead of “Let’s be safe out there” message to workers, workers need to be clear that they have a legal right to a safe workplace, a right to refuse imminently dangerous work.  And OSHA needs a sharp warning to employers that we will look for you, we will find you and we will jail you if you kill a worker in a trench.
• In order to make that message a reality, OSHA should work with Congress to provide the agency with additional funding to build a trenching task force that will focus on identifying as many small construction jobs as possible — using permitting system, satellite/GPS technologies, social media or any other means to find these sites before a worker is killed. Task force members should be trained to treat every fatality case as if it were a criminal investigation.

OSHA needs to send out a sharp warning to employers that we will look for you, we will find you and we will jail you if you kill a worker in a trench.

All of this an more needs to be done: The families of Mathew Miller, Marlon Diaz, Jerimiah Brown, Bobby Green, Harold Felton, Robert Higgins, Kelvin Mattocks, Robert Ray Castillo, Jay Saxe Froshaug, Dave Chmielewski, Rosario Martinez, Shane Anthony Sharpe, Carlos Eduardo González, Juan Baez-Sanchez, Victoriano Garcia-Perez, Fernando Romero Martinez, Anthony Smith, Rosario “Chayo” Martínez, Kyle Hancock, Anthony Smith, Jesse Foster,  Zachary Hess, Jim Spencer and far too many others expect no less.