Trench Deaths: Failure to Learn

I’m frustrated. Every few months I go on a tirade about workers who are needlessly suffocated and crushed to death in easily preventable trench collapses.  Then I assume the message has been sent (whatever good it will do) and I can move on to other subjects for a while.

Unfortunately that “while” never lasts long when it comes to trench collapses.

In this week’s “Weekly Toll” (temporary redubbed the “Monthly Toll” due to my vacation interruption), I reported on 5 trench deaths — two each in two separate events. 41-year-old Marcos Santiz-Lopez and 25-year-old Brandon M. Colburn were killed when the 10-foot deep trench gave way at the construction site in Punta Gorda, Florida.  Two brothers, Pete Bencker, 59, and Ron Bencker, 68, were killed in a trench collapse in Michigan, and one so-far unnamed worker was killed and another injured in a trench collapse on April 21, in Canyon County Idaho. In April, a construction worker died after he was trapped in a trench that collapsed while he was working on a home in Spring City, Tennessee.

Last month OSHA cited a company for sending workers back into a deep unprotected trench just hours after they narrowly escaped a partial collapse. The trench collapsed again, killing one of the workers.

Even more troubling, last month OSHA cited a company for sending workers back into a deep unprotected trench just hours after they narrowly escaped a partial collapse. The trench collapsed again, killing one of the workers. OSHA proposed $234,000 in fines. It remains to be seen whether criminal charges will be sought in that case.

Failure to Learn

So what does it take for employers to learn that they can’t send workers down into unprotected trenches?

More information? Not likely. There’s nothing new here. 2300 years before OSHA — Heroditus wrote about how the Phoenicians had figured out how to prevent trench collapses that were plaguing their army. There is plenty of material on the OSHA website, and as I’ve pointed out many times before, OSHA’s trenching and excavation webpage provides information on trenching hazards and solutions, including a safety video.  (Or you can do a Google search under “trench safety” which will conjure up about 10 million hits in half a second.)

Inspections and monetary penalties?  OSHA inspections and fines may be somewhat effective, but they don’t seem to be doing the job adequately.  Look at the cases described below, cited by OSHA earlier this month.

On November 16, 2021, OSHA inspectors responded to a complaint and found H&W Contracting workers in an unprotected trench in South Dakota. Then, just six days later, OSHA responded to another complaint and found that the same company’s employees were working in five separate unprotected trenches as they replaced storm sewers with new ones. That’s two times in seven days. OSHA proposed one willful and three serious violations and proposed $122,838 in penalties from the Tea location and one willful violation with proposed penalties of $95,718 for the  for the other.

The OSHA press release noted that “The discovery continues H&W Contracting LLC’s history of disregarding the serious and often fatal dangers associated with working in an unprotected trench and federal law. Since 2019, the U.S. Department of Labor’s Occupational Safety and Health Administration has cited the company three times for similar violations.” Total penalties came to over $218,000

And last Tuesday, OSHA announced that it had proposed penalties of $449,583 and issued three willful and one serious citation to A4S LLC after a trench collapse in Breckenridge, Colo., caused fatal injuries for one worker and necessitated the rescue of two others. OSHA later determined that trench collapses at the site had occurred several times in the months prior.

Teach Your Employers Well

Will a penalty of over $218,000 teach H&W Contracting a lesson or will almost $450,000 have an effect on A4S LLC? And more important, will these penalties send a strong message to other construction companies who cut corners on the backs of workers? Maybe for some.

But almost certain jail time for employers who knowingly send workers to their deaths in unprotected trenches (or even endanger them in unprotected trenches) will send a much stronger message that’s impossible to ignore.

We’ll never know in this case.  In the South Dakota case where an employer was cited twice in a week, criminal prosecution and jail time may be deserved, but it’s not an option because under the Occupational Safety and Health Act, criminal prosecutions are only allowed in the case of a willful violation that has contributed to a death. Happily, OSHA got there on time — both times — and no one was killed. But the agency is limited in this case to civil penalties.

A company could put workers down into deadly unsafe trenches every week. Even if the trenches collapse evert week but only, seriously and permanently injure workers, instead of killing them, there can be no criminal prosecution under current law.

In fact, under current law, H&W or another company could put workers down into deadly unsafe trenches every week. Even if the trenches collapse evert week but only, seriously and permanently injure workers, instead of killing them, there can be no criminal prosecution under current law.

Nor can OSHA, with its small staff and tiny (shrinking) budget, come anywhere close to monitoring all trench jobs across the country.

The National Utility Contractors Association has declared June 2022 “Trench Safety Month.” OSHA will collaborate with the association for “Trench Safety Stand-Down” week, June 20-24. Let’s hope a few more employers get the message.

Change the Laws to Protect Workers

But “hope” is not an effective policy. Increasing OSHA’s budget significantly and changing the law to allow criminal prosecution for endangering workers would be much more effective. the Protecting America’s Workers Act (PAWA), which has been introduced in the House of Representatives, would allow felony criminal penalties against employers who kill workers, as well a employer who knowingly violates a standard which causes or significantly contributes to “serious bodily harm” to any employee.

PAWA needs to be passed.

But laws — like the PRO Act — also need to be passed to make it easier for workers to join unions. Increased unionization would also better protect workers by providing more training and enabling them to better exercise their right to a safe workplace without fear of retaliation.

Workers lives depend on it.